IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
SEPTEMBER TERM, 2000
NO. 923 lttWB
ADNAN SYED,
Appellant
v.
STATE OF MARYLAND,
Appellee
FEB 2 7 ZWZ
BY COURT OF SPtClAl APPEALS
APPEAL FROM THE CIRCUIT COURT FOR BALTIMORE CITY
(HONORABLE WANDA KEYES HEARD, PRESIDING)
BRIEF OF APPELLANT
WARREN A. BROWN
WARREN A. BROWN, P.A.
1200 Court Square Building
200 East Lexington Street
Baltimore, Maryland 21202
(410) 576-3900
Lisa J. Sansone, Esquire
Law Office of Lisa J. Sansone
1002 Frederick Road
Baltimore, Maryland 21228
(410) 719-0221
Attorneys for Appellant
TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES
11
STATEMENT OF THE CASE
QUESTIONS PRESENTED
2
STATEMENT OF FACTS
3
ARGUMENT
17
A. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT,
VIOLATED BRADY AND VIOLATED APPELLANT'S DUE PROCESS
RIGHTS WHEN IT SUPPRESSED FAVORABLE MATERIAL EVIDENCE OF
AN ORAL SIDE AGREEMENT WITH ITS KEY WITNESS, AND WHEN IT
INTRODUCED FALSE AND MISLEADING EVIDENCE, AND THE TRIAL
COURT COMMITTED REVERSIBLE ERROR IN PROHIBITING APPELLANT
FROM PRESENTING THIS EVIDENCE TO THE JURY 17
1 . The State suppressed favorable material evidence and introduced and
elicited false and misleading testimony relating to the plea agreement with
its key witness in violation of Brady 18
2. The State's actions constituted prosecutorial misconduct 41
3. The trial court committed reversible error in prohibiting Appellant from
calling Benaroya and recalling Wilds as a witness 43
4. The trial court committed reversible error in restricting the cross-
examination of Wilds 44
5. The trial court committed reversible error in denying Appellant's motion
to strike the testimony of Wilds 47
6. The trial court committed reversible^ error in precluding Appellant from
calling Ms. Julian as a witness 48
7. The trial court committed reversible error in denying Appellant's motion
to disclose documents and information from the State 49
8. The trial court committed reversible error in denying Appellant's motion
to question Mr. Urick out of the presence of the jury 50
B. THE TRIAL COURT ERRED IN ADMITTING HEARSAY IN THE FORM
OF A LETTER FROM THE VICTIM TO APPELLANT, WHICH IS HIGHLY
PREJUDICIAL 51
C. THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF
THE VICTIM'S 62-PAGE DIARY, WHICH CONSTITUTED IRRELEVANT
HIGHLY PREJUDICIAL HEARSAY 55
CONCLUSION 63
CERTIFICATE OF SERVICE 64
PERTINENT AUTHORITIES 65
APPENDIX 75
TABLE OF AUTHORITIES
Cases Page(s)
Arizona v. Youngblood . 488 U.S. 51, 109 S.Ct. 333 (1988) 41
Banks v. State . 92 Md. App. 422, 438, 608 A.2d 1249 (1992) .... 51, 54, 55, 58, 59,
61
Brady v. Maryland . 373 U.S. 83, 83 S.Ct. 1194 (1963) 18
Buckeve Powder Co. v. DuPont Powder Co. . 248 U.S. 55,
39 S.Ct. 38(1918) 60
Case v. State . 1 18 Md. App. 279. 702 A.2d 777 (1997) 61
Clark v. State. 364 Md. 61 1. 774 A.2d 1 136 (2001) 18,41
ii
Cluster v.. Cole. 2 1 Md. App. 242, 3 1 9 A.2d 320 (1 974) 63
Commonwealth v. DelValle. 351 Mass. 489,
221 N.E.2d 922 (1966) 60
Commonwealth v. Gilday . 3 82 Mass. 1 66, 4 1 5 N.E.2d 797 ( 1 980) . 37
Commonwealth v. Hill . 432 Mass. 704 : 739 NR. 2d 670 (2000) ... 37
Convers v. State . Md. , A.2d
(No. 26. Sept. Term 2001) (filed February 5, 2002) 18,30,31,33-37,
39, 40, 47, 48, 49
Davis v. Alaska . 415 U.S. 308, 94 S.Ct. 1 105 (1974) 45
Delaware v. Van ArsdalL 475 U.S. 673, 106 S.Ct. 1431 (1986) ... 45
E.I, du Pont de Nemours & Co. v. Forma-Pack. Inc. . 351 Md. 396,
718 A.2d 1129(1998) 47,49,50
Fontaine v. State . 134 Md. App. 275, 759 A.2d 1 136,
cert, denied . 362 Md. 188 (2000) 18
Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997) 44, 46-49, 51
Martin v. State . Ala. Crim App. ,
2001 Ala. Crim. App. Lexis 298, 21 (2001) 32
McNeil v. State . 1 12 Md. App. 434 : 685 A.2d 839 (1 996) 41
Moosavi v. State . 355 Md. 651. 736 A.2d 285 (1999) 63
Move v. State . 139 Md. App. 538, 776 A.2d 120,
cert, granted . 366 Md. 274 (2001) 63
Napue v. People of 111. . 360 U.S. 264, 79 S.Ct. 1173 (1959) 32, 36, 37
Richardson v. State 324 Md. 611. 598 A.2d 1 80 (1 991 ) 62
Simmons v. State . 333 Md. 547, 636 A.2d 463,
iii
cert, denied . 513 U.S. 815, 115 S.Ct 70 (1994) 45
State v. Cox. 298 Md. 173, 468 A.2d 319 (1983) 45
Taliaferro v. State . 295 Md. 376, 456 A.2d 29,
cert, denied . 461 U.S. 948, 103 S.Ct. 2114 (1983) 47, 48
Trupp v. Wolff . 24 Md. App. 588, 335 A.2d 178,
cert, denied . 275 Md. 757 (1975) 50
United States v. Bag ley. 473 U.S. 667, 105 S.Ct 3375 (1985) .... 32
United States v. Brown . 490 F.2d 758, 763 n. 10 (D.C.Cir.1973) . . 60
United States v. Day , 591 F.2d 861 (D.C.Cir.1978) 60
United States v. Lovasco . 431 U.S. 783, 97 S.Ct. 2044 (1977) ... 41
United States v. Marion , 404 U.S. 307 r 92 S.Ct 455 (1 971 ) 41
University of Maryland Medical Systems Corp. v. Malory .
Md. App. , A2d (No. 1883, Sept. Term, 2000)
(Filed Oct 31, 2001) (2001 WL 1335643) 47,48
Wilson v. State . 363 Md. 333, 768 A2d 675 (2001) 31,33-38,40
Statutes. Rules. Constitutional Provisions
Maryland Rule 4-242 24,42
Maryland Rule 5-401 61
Maryland Rule 5-801 53
Maryland Rule 5-802 53
Maryland Rule 5-803 54, 55, 61, 62
iv
Maryland Rule 8-131
Maryland Rule 8-504
U.S. Const. Amend. VI
U.S. Const. Amend. XTV
Article 21, Md. Decl. Rights
Article 24, Md. Decl. Rights
IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
SEPTEMBER TERM, 2000
NO. 923
ADNAN SYED,
Appellant
v.
STATE OF MARYLAND,
Appellee
APPEAL FROM THE CmCUIT COURT FOR BALTIMORE CITY
(HONORABLE WANDA KEYES HEARD, PRESIDING)
BRIEF OF APPELLANT
I. STATEMENT OF THE CASE
On February 25, 2000, Appellant was convicted by a jury in Baltimore City, the
Honorable Wanda Keyes Heard presiding, of the following offenses: first degree murder,
robbery, kidnapping and false imprisonment. 1 On June 6, 2000, Judge Heard sentenced
Appellant as follows: life imprisonment for first degree murder; 30 years imprisonment for
kidnapping, consecutive to the life sentence; 10 years imprisonment for robbery concurrent
to 30 years for kidnapping and consecutive to the life imprisonment sentence; and the trial
court merged the false imprisonment with the kidnapping count.
*A first trial ended in a mistrial on December 15, 1999 after the jury overheard a
different trial judge at a bench conference refer to defense counsel as a "liar." (12/15/99-
253)
II. QUESTIONS PRESENTED
A. Whether the State Committed Prosecutorial Misconduct, Violated Brady
and Violated Appellant's Due Process Rights When it Suppressed Favorable
Material Evidence of an Oral Side Agreement with its Key Witness, and When
it Introduced False and Misleading Evidence, and the Trial Court Committed
Reversible Error In Prohibiting Appellant from Presenting this Evidence to the
Jury?
1. Whether the State suppressed favorable material evidence and
introduced and elicited false and misleading testimony relating to the plea
agreement with its key witness in violation of Brady ?
2. Whether the State's actions constituted prosecutorial misconduct?
3. Whether the trial court committed reversible error in prohibiting
Appellant from calling Benaroya and recalling Wilds as a witness?
4. Whether the trial court committed reversible error in restricting the
cross-examination of Wilds?
5. Whether the trial court committed reversible error in denying
Appellant's motion to strike the testimony of Wilds?
6. Whether the trial court committed reversible error in precluding
Appellant from calling Ms. Julian as a witness?
7. Whether the trial court committed reversible error in denying
Appellant's motion to disclose documents and information from the State?
8. Whether the trial court committed reversible error in denying
Appellant's motion to question Mr. Urick out of the presence of the jury?
B . Whether the Trial Court Erred in Admitting Hearsay in the Form of a Letter
from the Victim to Appellant, Which Is Highly Prejudicial?
C. Whether the Trial Court Erred in Permitting the Introduction of the
Victim's 62-page Diary, Which Constituted Irrelevant Highly Prejudicial
Hearsay?
2
III. STATEMENT OF FACTS
Appellant was convicted of killing his close friend and former girlfriend Hae Min Lee
on or about January 13, 1999. Appellant and Hae were seniors at Woodlawn High School
in Baltimore County. They were both in the gifted and talented program there and had both
been accepted to colleges. (1/28/00-238) 2 At trial, there was considerable testimony relating
References to the Transcript are as follows:
Date
7/9/99
7/23/99
12/15/99
1/21/00
1/24/00
1/27/00
1/28/00
1/31/00
2/1/00
2/2/00
2/3/00
2/4/00
2/8/00
2/9/00
2/10/00
2/11/00
2/14/00
2/15/00
2/16/00
2/17/00
2/21/00
2/22/00
2/23/00
2/24/00
2/25/00
Proceedings
Motion To Disqualify Defense Counsel Prior to First Trial
Ruling on Motion to Disqualify Defense Counsel
First Trial - Mistrial
Motions, Voir Dire Second Trial
Trial on the Merits, Second Trial
and Verdict
3
to the religious differences between Hae and Appellant, and the difficulties posed by these
differences in dating each other. Appellant is a Muslim, and dating is forbidden. Hae was
a Christian, and ultimately, their religious differences led the pair to end their relationship.
(1/28/00-141) Friends testified that both Hae and Appellant were sad about the breakup, but
not bitter or angry. (1/28/00-224) Yaser Ali, Appellant's best friend, testified that Appellant
told him that the relationship was over because it was too hard to hide it from his family, and
that the breakup was a mutual decision. (2/3/00-88) Ali also testified that Appellant wanted
to remain friends with Hae after the break up, and that Appellant had interests in other girls
as of December, 1998. (2/3/00-117-123) At the beginning of January, 1999, Hae began
dating Don Cliendienst, whom she met while working part time at Lens Crafters. (1/28/00-
64-69)
Hae was last seen alive on January 13, 1999 at school around 2:30 p.m. Her family
filed a missing persons report when she failed to pick up her cousin at school as she regularly
did. (1/1 3/00-5) She was supposed to pick up her 6 year-old cousin at 3 :00 or 3 : 1 5 p.m. that
day. (1/28/00-25) Inez Butler Hendricks, a teacher and athletic trainer at Woodlawn High
School and Hae's friend, testified that she saw Hae at 2:15-2:30 p.m. on January 13. Hae
told her she was in a hurry to pick up her cousin from school, but that it was not far and she
would be back soon. Hendricks told her to hurry because Hae had to be back by 5:00 p.m.
to ride the wrestling team bus to an away match for which Hae was to keep score. (2/4/00-
6/6/00
Sentencing and Motion for New Trial
4
19-20) When Hae did not return by 5:00 p.m., Hendricks took Hae's place as scorer.
(2/4/00-21) She testified that Appellant was on the track team, and practice begins by 3:30
p.m. (2/4/00-17)
Appellant was questioned by police on January 25, 1999 about Hae's disappearance.
He told the police that he and Hae used to date. He said that on January 13, 1999, a
Wednesday, he had class with Hae from 12:50 to 2: 1 5 p.m. Appellant said he went to track
practice that afternoon. He did not see Hae the next two days at school, Thursday and
Friday, because the school was closed for inclement weather. (1/31/00-25)
Hae's body was found in Leakin Park on February 9, 1 999 by a man named Alonso
Sellers. (1/3 1/00-27) He testified that he saw the body in Leakin Park when he went to find
a private spot to urinate. Unbeknownst to the jury, Alonso Sellers had been previously
convicted of indecent exposure. Sellers testified that he left his house and was driving to
work when he had to pull his car over to urinate in the park. The park was only a few blocks
away from his house. (2/23/00-9) The body was 127 feet from the road and was difficult to
see. (1/31/00-101) The body was not even visible to Dr. Rodriguez, a member of the
recovery team who went to exhume the body. (1/28/00-1 82) Dr. Rodriguez testified that the
body was well hidden, and the average person would not be able to see it. (1/28/00-1 82)
The Medical Examiner testified that Hae had been strangled, but was unable to testify
as to when she had been killed. (2/2/00-66) Hairs found on Hae's body were compared to
Appellant and did not match Appellant's hair. (2/1/00-1 1 6) Those hairs were not compared
5
to anyone else. (2/1/00-1 16) Fibers found on Hae's body were compared to fibers from
Appellant's clothing, and no match was made. (2/1/00-123) Likewise, Appellant's clothing
was examined and compared to fibers from Hae's clothing, and no match was found.
(2/1/00-123) Appellant's coat was examined and nothing of evidentiary value was found.
(2/1/00-165) Soil from Appellant's boots which were seized from his house were compared
to soil samples from the burial site and no match was found. (2/1/00-165) Appellant was
ruled out from having been the source of a stain on a shirt in Hae's car. (2/2/00-28)
Don Cliendinst testified that he dated Hae after she and Appellant broke up, from
January 1, 1999 until her disappearance on January 13, 1999. (2/1/00-71) On one occasion
between January 1 and 13, he saw Appellant at the Lens Crafter store where both Don and
Hae worked. Appellant came out to the store to inspect Hae's car because it was not running
properly. Both Don and Appellant concluded that the car was not safe for Hae to drive home.
Don said that Appellant, who knew Hae and Don were dating, was not hostile to him.
Appellant drove Hae home that night. (2/1/00-76-86) Appellant's fingerprints were found
in Hae's car after she disappeared. Appellant admitted he had been in Hae's car before on
numerous occasions. (2/1/00-39) Inez Butler Hendricks testified that after Hae's body was
found, Appellant told her that his last memories of Hae were not good, that they had a fight
about Hae going to the prom with Appellant. (2/4/00-26)
Jay Wilds was the chief prosecution witness, who testified as follows. He was one
grade older than Hae and Appellant. Wilds dated Stephanie McPherson, who was
6
Appellant's close friend. (2/4/00-1 1 5) Wilds said Appellant was an acquaintance of his, and
he gave Wilds a ride in his car one time. Even though Appellant was the prom king and
Stephanie was the prom' queen, Wilds said he was not jealous of Appellant's relationship
with Stephanie. (2/14/00-66) On January 12, 1999, which was Wilds' birthday, Appellant
called him at 10:00 p.m. He asked Wilds what he was doing the next day. Wilds said
"nothing," and that was the end of the conversation. (2/4/00-1 1 9) The next morning, January
13, 1999, which happened to be Stephanie's birthday, Appellant called Wilds at 10:45 a.m.
Wilds told Appellant he needed to go to the mall to get Stephanie a gift, and Appellant said
he would take him. He and Appellant went to Security Square Mall, shopped for about one
and a half hours, and Appellant said he needed to go back to school. (2/4/00-125) On the way
to school, Appellant talked about his relationship with Hae, and said it was not going well.
Wilds testified that Appellant seemed hurt rather than angry. (2/4/00-125) Wilds then
testified that Appellant said Hae made him mad and said, "I am going to kill that bitch."
(2/4/00-126) Appellant told Wilds he could drop Appellant off at school and take
Appellant's car as long as he picked Appellant up later. Appellant gave Wilds Appellant's
cell phone so that he could call Wilds when he was ready to be picked up.
Cell phone records for Appellant's cell phone showed that at 12:07 p.m., Wilds called
the home of his friend Jen Pusiteri. Wilds went to her home and played video games with
Jen's brother Mark for about 30 minutes. Jen was not home. Wilds then left with Mark to
go back to the mall. (2/4/00-127-130) Wilds testified that he and Mark returned to Mark's
7
house and Jen was there. Later, Wilds went to his friend Jeff s house, but he was not at -
home. Appellant allegedly called Wilds to come pick him up at Best Buy. (2/4/1 30) Wilds
testified that he saw Appellant standing near a payphone outside of Best Buy wearing red
gloves. Appellant allegedly directed Wilds to park near a gray Sentra. Wilds testified that
Appellant asked him if he was ready for this, and then opened the trunk of the Sentra to
reveal Hae's body. (2/4/00-13 1) Wilds said that Appellant got in Hae's car and told Wilds
to follow in Appellant's car. They allegedly drove to a Park and Ride on Interstate 70. Wilds
said he got into the passenger side of Hae's car. Wilds called Jen at 3:21 p.m. to see if his
friend Patrick was home so he could buy marijuana, but he was not. Wilds said Appellant
called a young lady in Silver Spring and made small talk, and that Appellant received a call
from someone speaking Arabic, possibly his mother. (2/4/00-134-40, 143)
Wilds said Appellant told him, "it's done." Wilds said Appellant said it kind of hurt
him but not really, because when someone treats him like that they deserve to die. Appellant
allegedly said, "how can you treat someone like that that you are supposed to love." He
allegedly then said, "all knowing is Allah." (2/4/00-142) Then Appellant allegedly said he
needed to get back to track practice because he needed to be seen. As he got out of the car
at school, Appellant allegedly said "motherfuckers think they are hard, I killed someone with
my bare hands." (2/4/00-142) Wilds testified that Appellant told him that he thought Hae
was trying to say something Like apologize to him and that she kicked off the turn signal in
the car. Appellant allegedly said he was afraid Hae would scratch him in the face. (2/4/00-
8
142-43)
After dropping Appellant off at school, Wilds testified that he went to Kristi Vincent's
house, smoked some marijuana, and debated about what to do. Kristi and her boyfriend were
there. (2/4/00-144) About 30 minutes later, Appellant called and Wilds went to school to get
him. They went back to Vincent's and Appellant allegedly fell asleep on the floor after
smoking some marijuana. Appellant got a call from Hae's parents asking if he had seen Hae
and he said no, and suggested they ask her new boyfriend. (2/4/00-145) Appellant then
received a call from the police asking where Hae was and he said he did not know. Wilds
said he left Vincent's with Appellant.
According to Wilds' testimony, Appellant drove Wilds home and said, "you have got
to help me get rid of Hae." (2/4/00-147) Wilds feared that Appellant would use his
knowledge of Wilds' drug dealing against him and agreed to help. (2/4/00-147) Wilds got
two shovels form his house and put them in Appellant's car. They drove to pick up Hae's
car, and Appellant got in Hae's car. Wilds followed Appellant around for 45 minutes, and
they ended up in Leakin Park (2/4/00-148).
Wilds said he was supposed to meet Jen at 7:00 p.m., so he paged her at 7:00 p.m.
from Leakin Park. While Wilds and Appellant were digging, Jen called the cell phone,
returning Wilds' page. Appellant allegedly answered and told Jen they were busy and hung
up-. Wilds said after they dug for a while, Appellant asked Wilds to help him get Hae out of
the car, but Wilds refused. (2/4/00-152) Allegedly, while Appellant took Hae's body to the
9
shallow grave and put dirt on her to cover her, he received another call. He spoke part in
Arabic and part in English. (2/4/00-153) Wilds testified that after burying Hae, they left and
parked Hae's car near some apartments. According to Wilds, Appellant said, "it kind of
makes me feel better and it kind of doesn't." (2/4/00-1 56) He said they went to Value City
and threw away some of Hae's belongings and some other evidence in a dumpster. Wilds
paged Jen again. Appellant allegedly drove Wilds home and Wilds changed his clothes and
put them in a bag. Jen came to pick up Wilds at his home and took him to Super Fresh where
he threw the shovels and his bag of clothes away in a dumpster. (2/4/00- 158) Wilds told Jen
that he wanted her "to be the one person to know that I didn't kill Hae." (2/4/00-158)
Wilds was questioned three times by the police, the first time was on February 28,
1999. (2/10/00-14) On that date, the police questioned him for two hours, and then turned
a tape recorder on and questioned him for two more hours. He said the police confronted
him with things Jennifer Pusiteri had told them earlier when she was questioned by police.
Wilds said that he told Jennifer what happened on January 13. Wilds said he asked the
police to turn off the recorder, which they did, and he asked for an attorney. The police
asked him why he needed one, and turned on the recorder to continue the questioning.
(2/10/00-49)
Wilds acknowledged that he lied to the police. (2/4/00-221) The first time Wilds
spoke to the police, he said he was not involved in killing or burying Hae. (2/4/00-229) He
said he lied to the police about the location of Hae's car. (2/10-66) He told the police that
10
he saw Hae's body in a truck, not in the trunk of Hae's.Sentra. (2/10/00-76) He also told
police he walked to the mall on January 13. He said his only contact with Appellant on
January 13 was at 2:00 p.m. when Appellant called him and asked for directions to a shop
in East Baltimore. Wilds told the police different stories about where Jennifer picked him
up on January 13.
On March 15, 1999, Wilds gave a second statement to the police. (2/10/00-83)
During this questioning, Wilds told police that Appellant said on January 12 that "he was
going to kill that bitch, " and then later said it was four days before January 12. (2/10/00-
187)
On April 13, 1999, Wilds gave a third statement to police. He told police that
Appellant killed Hae in Patapsco State Park, and that Appellant paid him to help. (2/14/00-
115) Wilds eventually took the police to where the body was buried and to where Hae's car
was located.
Detective MacGillivary testified as follows. On February 9, 1999, he responded as
the primary detective to Leakin Park, where Hae's body was recovered. (2/17/00-153) Based
upon information contained in Hae's missing person report, he obtained Appellant's cell
phone records. On February 26, 1999, he went to Jennifer Pusiteri's house and asked her to
come to the police station to talk. (2/17/00-156) Jennifer came to the station that night and
gave a statement. She said that she heard that Hae had been strangled, although that
information had not yet been publicly released. (2/1 7/00-3 14)
11
Contrary. to Wilds' testimony, MacGillivary said at no time did Wilds request a
lawyer, because if he had, all questioning would have ceased. (2/18/00-128-129)
MacGillivary denied that Wilds first took him to the wrong location before showing police
where the car was. He also said that Wilds told him that Appellant showed him Hae's body
in the trunk on Franklintown Road, contrary to Wilds' testimony that it happened at the Best
Buy. (2/1 8/00- 151) MacGillivary interviewed Wilds a second time on March 15, 1 999, with
Appellant's cell phone records, and noticed that Wilds' statement did not match up to the
records. Once confronted with the cell phone records, Wilds "remembered things a lot
better." (2/17/00-158) Wilds gave yet a third statement on April 1 3, 1 999, and admitted that
he lied on the two previous occasions to cover up the fact that he bought and sold marijuana.
(2/18/00-166) On cross-examination, MacGillivary testified that Alonso Sellers was
considered to be a suspect. (2/1 7/00-225)
On February 26, 1999, after speaking with Jennifer, MacGillivary went to Appellant's
home and Appellant gave a statement. Appellant said he had a relationship with Hae, and
had been in her car before, but not on January 1 3, 1 999. (2/1 7/00-264) Appellant said he did
not remember what happened on January 13, 1999. (2/17/00-271) A police report of this
statement was not written until September 14, 1999. On February 27, 1999, Appellant was
questioned at school and at the police station and gave statements denying his involvement.
Jennifer Pusiteri testified as follows. On January 13,1 999, Wilds came over to her
house in a tan car to hang out with her and her brother. Wilds was acting different, not
12
relaxed, and had a cell phone which was unusual. (2/1 5/00-1 85) Wilds said he was waiting
for a call. At 3:00-3:30 p.m., Wilds left her house. After 4:30 p.m., Jennifer called her friend
Kristi's house and Wilds was there. Wilds and Jennifer had plans to go to Kristi's house
together that evening. She called the cell phone later and someone answered the phone and
said, "Jay will call you back when he is ready for you to come and get him, he is busy."
(2/1 5/00-1 89) The voice on the cell phone was an older male, deep, not like a kid, and it was
not Wilds. (2/16/00-169) Between 8:00-8:15 p.m., Jennifer got a message from Wilds to
pick him up at Westview Mall in 15 minutes, so she left and picked him up in front of Value
City. (2/15/00-190-192) Appellant was with him, driving, and said hello to Jennifer. Wilds
got in her car and said, "I have to tell you something, but you can't tell anyone." He said
Appellant strangled Hae in the Best Buy parking lot. Wilds saw her body in the trunk. He
said Appellant used Wilds' shovels to bury her and Wilds wanted to make sure there were
no fingerprints on them. (2/1 5/00- 1 94- 1 96)
Jennifer testified Wilds told her he wanted to go check on Stephanie to make sure she
was okay. They went to Stephanie's house between 8:30-9:00 p.m. The next day Jennifer
took Wilds to F&M drugstore to get rid of clothing and boots in a dumpster. (2/1 5/00- 1 96-
198)
Kristi Vinson testified as follows. On January 13, 1999, at 5:00-5:15 p.m., she arrived
home, and her boyfriend Jeff Johnson was there. Wilds and Appellant arrived later, and were
acting "shady." (2/16/00-217) She had never met Appellant before. They all watched
13
television at about 6:00 p.m. Appellant was lying on some pillows on her floor when he
asked, "how do you get rid of a high?" (2/16/00-210) Appellant got a call on his cell phone
and said, "they're going to come and talk to me, what should I say, what should I do?"
(2/16/00-213) Then Appellant and Wilds left. (2/16/00-214) Wilds returned hours later with
Jennifer, but Appellant was not with them.
Debbie Warren testified as follows. She was a close friend of Hae's. Appellant and
Hae were boyfriend and girlfriend, but broke up and got back together two or three times.
She said that the last time they broke up because Hae felt that Appellant was being
overprotective of her. Hae began to date "Donnie" and Appellant knew about it. Appellant
told Debbie he thought Hae and Donnie were having sex while Appellant and Hae were still
dating, but Debbie told Appellant that it was not true. (2/16/00-298-302) The last time
Debbie saw Hae on January 1 3 was in gym class, and Hae was happy and rushing to go
somewhere at 3:00 p.m. Debbie could not remember where Hae was going, but she told
police on January 28, 1999 that Hae said she was going to the mall with Don. (2/16/00-306,
2/17/00-70)
On cross-examination, Debbie stated that she was friends with Stephanie, and
Stephanie confided to Debbie that she was interested in Appellant. At the prom in 1998,
when Appellant was voted prom king and Stephanie was prom queen, they danced.
Appellant, however, left Stephanie during the dance and went to get Hae to finish the dance
with him. (2/17/00-30-34) Hae broke up with Appellant two or three times because she did
14
not want Appellant to have to choose between her and his religion, and Hae's parents did not
want her to date Appellant either. (2/17/00-48) Appellant was not mad when Hae broke up
with him on these occasions. In fact, even after the final breakup in December 1998, Hae
and Appellant exchanged holiday gifts. (2/17/00-57) When Appellant found out Hae was
dating Don, he said he accepted it and would try to move on. (2/17/00-59)
Abraham Waranowitz testified as an expert in AT&T network design as to Erickson
cell phone equipment. Waranowitz testified that a cell phone activates a cell site which has
three sides. Each side points to a unique direction. Using exhibits which showed the number
of the cell tower activated by the cell phone when a call was made or received, Waranowitz
testified as to the location of the cell tower, and testified as to which of the three sides was
activated. Waranowitz testified that his tests revealed that the cell sites that were activated
were consistent with cell phone calls being made and received from Kristi Vincent's house
and the burial site in Leakin Park. (2/8/00-98-1 15)
On cross-examination, Waranowitz admitted that he could have used Appellant's
actual phone for the tests but did not. He could not remember when the tests were done, only
that he performed them somewhere between September and December. He verbally gave his
results to the State over the phone. (2/9/00-49-96) He admitted that the tests cannot tell
where the call was made or where the cell phone was within the wide cell site. He admitted
that some calls could trigger as many as three different cell sites. (2/9/00- 1 42- 1 72)
The State rested its case and Appellant called Rebecca Walker, a close friend of both
15
Appellant and Hae, who testified that even after Appellant and Hae broke up, they still cared
for each other and were still friends. (2/23/00-142) She also testified that Appellant was not
possessive about Hae, and he was extremely upset by her disappearance. (2/23/00-1 60, 1 75)
Syed Rahman, Appellant's father, testified that Appellant had been in the top 5% of
his class academically since eighth grade. Appellant led prayers at the family's place of
worship, which is a high honor. Mr. Rahman testified that although his religion does not
permit Appellant to date girls, Appellant was simply encouraged to do the right thing, and not
to date girls. (2/23/00-285-291) On January 13, 1999, Appellant attended religious services
with his father from 7:30 p.m. to 10:30 p.m. (2/24/00-6)
Andrew Davis, Appellant's investigator, testified that Hae's bank records showed that
on January 13, 1999, she made a purchase of $1.71 at Crown gas station at Harford Road and
Northern Parkway, which is far from Woodlawn. (2/24/00-1 06)
Saad Chaudry, Appellant's close friend, testified that Appellant obtained the cell
phone in order to call girls. He also explained that the cell phone was programmed with
phone numbers of Appellant's friends such that the numbers could automatically be dialed.
(2/24/00-145) He said that after Hae and Appellant broke up, Appellant was "laid back"
about it, and showed interest in other girls. (2/24/00-126)
Bettye Stuckey, Appellant's guidance counselor, testified that Appellant was a bright,
enthusiastic and delightful student. He was admitted to college at the University of Maryland
and the University of Maryland at Baltimore County. (2/24/00-203)
16
Other facts will be discussed as necessary, infra.
IV. ARGUMENT
A. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT,
VIOLATED BRADY AND VIOLATED APPELLANT'S DUE PROCESS
RIGHTS WHEN IT SUPPRESSED FAVORABLE MATERIAL
EVIDENCE OF AN ORAL SIDE AGREEMENT WITH ITS KEY
WITNESS, AND WHEN IT INTRODUCED FALSE AND
MISLEADING EVIDENCE, AND THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN PROHIBITING APPELLANT FROM
PRESENTING THIS EVIDENCE TO THE JURY.
Summary of Argument
The prosecutor suppressed favorable material evidence relating to the plea agreement
with its key witness, Jay Wilds. The prosecutor also introduced false and misleading
evidence. The suppressed evidence included the fact that there was a separate oral
agreement with Jay Wilds which permitted Wilds to withdraw from the plea agreement at any
time, which fact was not included in the written plea agreement furnished to Appellant and
introduced by the State at trial. In addition, the State hid the fact that it provided Wilds with
a free private attorney, who recommended that Wilds sign the plea agreement. The State
waited to charge Wilds with a crime until after he accepted the services of the free private
attorney selected by the State so that Wilds would be ineligible to obtain a public defender.
Wilds earlier sought to obtain the services of a public defender, but was told he could not
receive a public defender until after he was charged with a crime.
This and other evidence was suppressed by the State, and was discovered by .
Appellant's trial counsel during and after Wilds' highly damaging testimony against
17
Appellant. When Appellant attempted to learn all of the facts surrounding the plea
agreement, the State objected and the trial court made numerous evidentiary rulings
preventing Appellant from presenting all of the terms of the plea agreement and the full
circumstances surrounding the plea agreement to the jury (see infra ). The State's conduct
amounted to prosecutorial misconduct, violated Brady? violated Appellant's rights to due
process of law, and the trial court's rulings constituted reversible error.
The standard for determining whether the State violated Brady is whether the
prosecutor suppressed favorable material evidence. Conyers v. State . Md. , A.2d
(No. 26. Sept. Term 2001) (filed February 5, 2002). The standard for determining
prosecutorial misconduct is whether the misconduct actually prejudiced the defendant and
whether the prosecution acted intentionally to prejudice the defendant. Clark v. State . 364
Md. 61 1, 774 A.2d 1 136 (2001). A trial court's evidentiary rulings are reviewed for abuse
of discretion. Fontaine v. State . 134 Md. App. 275, 287-88, 759 A.2d 1 136, cert, denied . 362
Md. 188 (2000).
1. The State suppressed favorable material evidence and introduced and elicited false and
misleading testimony relating to the plea agreement with its key witness in violation of
Brady .
a) Facts
Jay Wilds, the chief prosecution witness, testified on direct examination that he signed
3 Brady v. Maryland . 373 U.S. 83, 83 S.Ct. 1 194, 10 L.Ed.2d 215 (1963).
18
a plea agreement and pled guilty on September 7, 19.99 4 to being an accessory after the fact
with regard to the death of Hae Min Lee. (2/4/00-162) Wilds testified that as long as he
told the truth, the State agreed that his sentence would be capped at two years. (2/4/00-1 63)
The State offered the written plea agreement into evidence. (State's Exhibit 35, App. 1-4)
(2/4/00-162, App. 5) The prosecutor asked Wilds, "[a]nd that's the plea agreement you
entered into when you pled guilty to accessory in this murder? A. Yes." (2/4/00-162-63,
App. 5-6) The written agreement provided that if Wilds failed to complete the terms of the
agreement, the State will recommend a sentence of five years incarceration. (Exhibit 35,
page 2 #2(d)) The agreement also expressly provided that "[Wilds] shall not be permitted to
withdraw a guilty plea tendered pursuant to this Agreement under any circumstances."
(Exhibit 35 at page 3, #5) The Agreement also provides "[fjhere are no other agreements,
promises or understandings between [Wilds] and the State. This Agreement can only be
amended in a writing signed by all the parties." (Exhibit 35, Paragraph 9 page 3)
After the State rested its case, a few days from the end of a nearly six-week trial,
Appellant discovered the existence of an oral side agreement between the State and Wilds,
that was not turned over by the State in discovery and was fortuitously discovered by
Appellant during trial. This side agreement provided that Wilds could withdraw from the
plea agreement at any time, contrary to the written plea agreement and contrary to the
"Appellant's first trial was scheduled to begin on October 13, 1999.
19
assertions" of the prosecutor.' This discovery unfolded out of the presence of the jury, as
follows:
[BY DEFENSE COUNSEL]: [Ms. Benaroya, Wilds' attorney] would have
said, but — couldn't go any further and cut off questioning of her, that ~ she
may [sic - made]- with Mr. Urick [the prosecutor] on the 7 th [of September,
1999], in the presence of her client and that she made sure [her] client
understood that one of the benefits that's not reflected in the typewritten plea
agreement and would not be reflected on the record was an agreement that
would allow Mr. Wilds to withdraw his plea at a time later than the 7 th , and
she would have testified that's what she told me in the presence of my law
clerk, that her concern and insistence on that being a benefit of the bargain
because she felt that .... since it was so unusual that his lawyer be provided
by the prosecutor that he had an absolute right, after reflection, to withdraw
the plea.
(2/22/00-63-64, App. 7-8) There is reference to this questioning of Benaroya occurring out
of the presence of the jury and under oath (2/23/00-238), but it is not part of the record.
Apparently, the frial court was present when Ms. Benaroya told this to Appellant's counsel,
and agreed that defense counsel's recitation of Benaroya's testimony was accurate: 6
5 The prosecutor told the trial court in a bench conference:
It was made clear to him that he was entering a guilty plea, that it would be
a binding plea. . . It was made clear to him that those procedures were
binding, that they could be done without his presence, in his absence
(2/4/00-203)
6 At the close of the previous trial day's testimony, February 18, 2000 (February
21. 2000 was a holiday), the trial court stated: "I still need to speak to her [Benaroya]
myself . . . "which may shed light on when tins questioning of Benaroya took place.
(2/18//00-202)
20
THE COURT: She did say it She said it. She said that she was - it was
her understanding that the Defendant Wilds, her client, could withdraw his
plea.
[BY DEFENSE COUNSEL]: Right. At any time.
THE COURT: That's what she said.
(2/22/00-71) Mr. Urick, the prosecutor, denied that this was part of the plea. (2/22/00-66)
Appellant argued to the trial court at a bench conference why this information was
important and relevant to present to the jury :
As to that issue ... I believe we're absolutely entitled to get in all the benefits
of the bargain that were extended to Mr. Wilds, whether or not Mr. Wilds
testifies truthfully as to what they are.
Now, the fact finder has a right to consider all of the benefits of the bargain in
assessing whether or not the bargains have anything to do with influencing his
testimony or what the bargain is or what extent he may be beholding [sic] to
him when he made the bargain, both what's written and what's not written,
and it's up to the jury to decide whether Mr. Wilds is telling the truth and to
decide as to all thing, including what Mr. Wilds' perception of the bargain ~
or his lawyer says that was part of the bargain, it was made in front of him, and
that goes directly to impeach him. And that's certainly not attorney/client
privilege, made in the presence of and in the earshot of Mr. Urick.
Since the bargain that the jury knows about makes Mr. Urick the arbiter of
truth, the issue of whether or not there's a side deal that Mr. Wilds may not
want to admit to because if, in fact, it's true it makes him out to be a liar as to
that issue, as to what the bargain was ....
(2/22/00-65)
When Appellant requested permission to introduce evidence of the side agreement
through the testimony of Benaroya and by recalling Wilds, who had finished testifying before
21
Appellant learned of the side agreement, the trial court ruled that Appellant could not call
Benaroya or recall Wilds to testify in front of the jury: "I believe that calling [Benaroya]
would not be appropriate and it would just take us off on a needless presentation of evidence.
And I would find that the credibility of Mr. Wilds has been exhausted." (2/22/00-74, App.
9) Similarly, the trial court denied Appellant's previous motion to question Mr. Urick as a
witness out of the presence of the jury to determine the circumstances surrounding the plea
negotiations. (2/1 1/00-23, App. 10) The trial court also denied Appellant's previous motion
to strike all of Wilds testimony because the State failed to disclose all of the circumstances
surrounding the plea negotiations.(2/l 5/00-34, App. 1 1) The evidentiary rulings will be dealt
with separately, infra .
In addition to the side oral agreement, the State suppressed other evidence. On cross-
examination of Wilds by Appellant, over objections from the State, it was disclosed for the
first time that the State had provided Wilds with a free private attorney:
[BY DEFENSE COUNSEL]: Incidentally, at what point did your lawyer come
about after the 1 3 th of April?
[BY THE STATE]: Objection.
THE COURT: Sustained.
[BY DEFENSE COUNSEL]: Did anyone help provide you a lawyer?
[BY THE STATE]: Objection.
THE COURT: Overruled.
MR. WILDS: Yes, ma'am.
22
QWho?
A Mr. Urick.
Q Mr. Urick the prosecutor in this case helped provide you a lawyer?
A Yes, ma'am.
Q And was that before or after you got notice that you would be charged by
him?
[BY THE STATE]: Objection.
THE COURT: Overruled.
MR. WILDS: Before, ma'am.
[BY DEFENSE COUNSEL]: Did you meet your lawyer before the day you
signed [the plea agreement]?
MR. WILDS: No, ma'am.
* * *
Q . . . . Now, you didn't have to pay for your lawyer, did you?
[BY THE STATE]: Objection.
THE COURT: Sustained.
(2/10/00-155-56, 159, App. 12-13) (Emphasis supplied) 7 Wilds testified in the jury's
presence that when Mr. Urick introduced the lawyer, Ms. Benaroya, to him, Mr. Urick stated
that she was "a very good lawyer." (2/15/00-60)
7 Later, Wilds testified that he considered a free private attorney to be a benefit,
because he could not afford private counsel. (2/15/00-127)
23
As Appellant delved into the circumstances surrounding the State providing the chief
prosecution witness with a free private attorney, it became clear that the State attempted to
and did improperly influence the witness to retain the attorney that the State chose, whom
the State believed would recommend that Wilds sign the plea agreement. The State,
knowing that Wilds could not obtain the advice of a public defender until he was actually
charged, refrained from charging Wilds until after he met with and retained the services of
Ms. Benaroya. (2/10/00-156) Wilds testified out of the presence of the jury that he had
attempted to get a public defender prior to September 7, but was told by the Office of the
public defender that he could not get an attorney until he was charged. (2/ 1 1 /00-2 1 3 ) Wilds
was charged on September 7, 1 999, after he was introduced to the free private attorney.
(2/1/00-182) Wilds met with Ms. Benaroya, agreed to accept her as his attorney, and
negotiated and signed the plea agreement. Immediately after signing the agreement, Wilds
was taken to a "guilty plea" hearing.
The State failed to disclose other favorable evidence as well. On cross-examination
by Appellant, Wilds, over objections from the State, disclosed for the first time that no
statement of facts was read at his "guilty plea" proceeding. (2/4/00- 1 93 -94) Thus, there was
no factual basis for the plea as required by Maryland Rule 4-242, and no finding of guilt
could have been made. The plea therefore was not binding, and Wilds or the State could
withdraw it at any time, contrary to what the jury was told and contrary to the terms of the
written plea agreement. As defense counsel further attempted to find out exactly what
24
transpired with Jay Wilds, the guilty plea and the free private attorney, it became apparent,
even to the trial court, that the State was trying to hide the true nature of the "guilty plea"
proceedings:
(Jury not present)
THE COURT: ... It would appear to the Court that every effort was made to
hide the existence of Mr. Wilds['] plea or attempted [sic] to plead because this
[Wilds' court file] says guilty verdict held sub curia. Which means what you
did was everything except for have the Court find the Defendant guilty. He
held the issue of whether or not the Defendant was guilty sub curia pending
the State providing a statement of facts. It appears the only reason why one
would do that, in my mind is so that there would be no record of a guilty plea
because if there's no guilty finding [then] he hasn't been found guilty. . . .
The other thing that I find interesting is that as Counsel has pointed out, I've
never seen a file like this before It appears very, very odd and unusual
and I can see why Ms. Gutierrez [defense counsel] would start to wonder.
(2/1 1/00-122-23) The trial court noted that the State was misrepresenting to the trial court,
defense counsel, and the jury that Mr. Wilds pled guilty, when, in fact, it was not a guilty
plea: "Well, what was difficult Mr. Urick, the other day when we asked, I know I asked
whether or not Mr. Wilds pled guilty, you said he pled guilty. . . . But the verdict wasn't
entered. I mean to say, to lead the Court to believe that the verdict was entered is not true.
... the reason [that defense] Counsel has been asking over and over, how could there be a
guilty plea with no statement of facts. It's very simple, is that no guilty verdict was entered,
that's how you kept the statement of facts out." (2/1 1/00-126-27)
The State hid still more evidence. During proceedings outside the presence of the jury
it was learned that Judge McCurdy, the Judge who heard the "guilty plea" or "attempted
25
guilty plea," had an ex parte hearing with Wilds and his attorney, Ms. Benaroya, after the
guilty plea hearing. (2/1 1/00-128) This "post-plea" hearing was held at the request of the
State, which waived its right to be present at the hearing. In the face of direct questioning
from the trial court, the State hid the fact that sometime after the September 7, 1999 "guilty
plea" hearing, Jay Wilds became disenchanted with his attorney, questioned whether that
attorney was given to him by the State solely for the purpose of advising him to sign the plea
agreement, questioned whether the attorney was loyal to him or to the State, and thought
about withdrawing his plea, (2/1 1/00-150, 160, 168, 171) Wilds called Judge McCurdy to
inform him of his doubts and problems. Wilds also called the prosecutor and informed the
State of his situation. (2/1 1/00-204-06)
The trial court repeatedly asked the State specifically whether it knew if something
happened after the plea to necessitate the post-plea hearing, and the State at least three times
answered falsely that it did not. The State knew that Wilds called Judge McCurdy to inform
him of these problems, because Wilds also called the State and informed it of the problems.
(2/1 1/00-204-06) It is clear that the prosecutor deliberately failed to tell the trial court why
the hearing was necessary:
(Jury not present)
[BY THE STATE]: When we asked Judge McCurdy to advise him of his right
to Counsel due to review of that to make sure he understood it and that he was
in fact, his assistance of counsel.
THE COURT: And when did that happen?
26
[BY THE STATE]: It happened sometime in September. I did not . . . Ms.
Benaroya [Wilds' attorney] showed up with him that day, he was given the
option, you know, explained. In abundance of caution we asked Judge
McCurdy to do an in camera review to make sure that he understood his right
to counsel, that he was making his election of his counsel. Judge McCurdy did
a review of that with him.
[BY DEFENSE COUNSEL]: . . . Having taken the beginnings of the plea or
if you believe Mr. Urick's version, well he thought that was a guilty plea then
what reason would exist to ask the Judge to review the voluntariness or the
adequacy of the satisfaction with the lawyer.
THE COURT: Good question.
[BY DEFENSE COUNSEL]: Something had to happen.
THE COURT: Did something happen post plea[?]
Mr. URICK: We were just discussing all possibilities . We thought in
abundance of caution we should.
THE COURT: What does that mean? Did something happen post plea?
MR. URICK. Post plea. No, it was debating around our office how we were
proceeding.
THE COURT: Post plea?
MR. URICK: Yeah .
THE COURT: On what? If he's pled guilty. The only thing his disposition
you need to have a conversation with the witness as to whether or not he's
going to withdraw his plea, is that what happened?
MR. URICK: No, we wanted Judge McCurdy to - do that we had made sure
there was an independent judicial advisement of his right to counsel, that he
understood that he was exercising it. We thought -
27
THE COURT: That's post plea. I'm asking after the plea. Okay. Let me get
the scenario right because I'm getting confused.
* * *
And you asked [Judge McCurdy] to set up the hearing?
MR. URICK: Yes.
THE COURT: You're suggesting that a Judge would have ex parte
communications with a Defendant and his attorney without the presence of the
State?
MR. URICK: It was with our permission. We waived our presence.
(2/1 1/00-1 28-1 34)(emphasis suppled) It was not until after this exchange that Wilds testified
out of the presence of the jury that the trial court and defense counsel learned that the reason
for the hearing was that Wilds had second thoughts about the loyalties of the attorney
provided by the State and was having doubts about his guilty plea. (2/1 1/00-205)
By waiving its right to be present, the State ensured the fact that an informal, off-the-
record hearing in the Judge's chambers would be held. 8 The fact that the State waived its
right to be present at the post-plea hearing in which its key witness in a murder prosecution
could decide to withdraw his plea demonstrates the lengths to which it was willing to go to
hide the fact that it provided the benefit of a free private attorney to its chief prosecution
witness, and to hide its knowledge of the fact that Wilds was unhappy with that free private
8 Although Wilds testified out of the presence of the jury that he believed the ex
parte hearing was on the record, no record or evidence of the hearing could be found.
(2/22/00-63)
28
State-provided attorney.
In sum, the State failed to disclose the following information to Appellant: 9 the side
agreement permitting Wilds to withdraw at any time from the plea agreement without court
approval; Wilds never entered a binding and completed guilty plea because the State
intentionally did not enter into evidence at that hearing a statement of facts in support of the
plea; the State knowingly allowed Wilds to testify falsely that he entered a guilty plea; the
State obtained and provided for Wilds a free private attorney; Wilds was not charged with
a crime until just after he agreed to be represented by the free private attorney, so that Wilds
would not be eligible to obtain a public defender who may not have recommended that he
sign the plea agreement; Wilds became disenchanted with his free private attorney
jeopardizing the "guilty plea"; the State arranged for Judge MeCurdy to have an ex parte
hearing with Wilds and his attorney, the record of which could not be found (2/22/00-63),
where the Judge addressed Wilds' concerns. 10 Based upon these actions, Appellant moved
9 It should be noted that the State, prior to trial, moved for a Protective Order to
withhold discovery of all statements made by Jay Wilds. (R. 144-147) Appellant
requested: pretrial "all information about Jay Wilds" including his statements. (R. 509-
525) The trial court denied the State's Motion and ordered them to turn over such
materials. (R. 540-544)
I0 It is interesting to note that when Wilds was sentenced after Appellant's trial, in
addition to noting that Wilds had fulfilled his plea agreement, Mr. Urick made an
additional recommendation for leniency based upon Mr. Urick' s belief that Wilds showed
remorse for his actions. Based upon this recommendation, the Judge gave Wilds a
suspended sentence, instead of the two years imprisonment called for by the plea
agreement which was admitted before the jury at Appellant's trial. State v. Wilds .
29925000 1 (July 6, 2000). Obviously, had Appellant known of this additional
recommendation, he would have used it to further impeach Wilds' credibility by arguing
29
at trial to strike Wilds' testimony, but the trial court denied the motion. (2/15/00-34) See
infra . The State's actions in the present case violate Brady ,
b) The Law
Just this month, the Court of Appeals decided Conyers v. State. Md. ,
A.2d (No. 26. Sept. Term 2001) (filed February 5, 2002). In Conyers . the Court of
Appeals reversed two murder convictions and a death sentence because the prosecution
withheld from the defense the fact that a key prosecution witness, Charles Johnson, asked for
reduction in his sentence on his pending charges before he would sign a statement he had
given to police inculpating Conyers. The State did disclose prior to trial that the plea
agreement required Johnson to plead guilty to a misdemeanor charge of conspiracy to commit
robbery and the State would recommend a sentence of one to six years imprisonment,
whereas Johnson faced a total of 244 years before he cut a deal. The plea agreement
required that Johnson testify truthfully against Conyers, and was introduced as evidence at
trial.
On direct examination at trial, the prosecutor asked Johnson whether he requested any
favors in exchange for the information he gave to police, and Johnson replied in the negative.
The police officer who took Johnson's statement, Detective Marll, testified in response to the
prosecutor's questions at trial that at no time did Johnson ever ask for a favor in exchange
Wilds would have additional motive to testify since he was getting no jail time versus two
years of jail time.
30
for giving the information. At the post conviction hearing, Marll testified in response to
Conyers' question that Johnson refused to sign the statement unless he had a commitment
for a plea bargain. The State argued to the Court of Appeals that the trial testimony of
Johnson and Marll was technically accurate, because Johnson had given the information
before he asked for a favor, and requested the favor in exchange for his testimony at Conyers'
trial. The Court of Appeals disagreed, and held that the State exhibited a "lack of candor"
and used a "deceptive approach." Slip op. at 32-33.
In determining whether there was a violation of Brady,, the Court noted the appropriate
standard:
"(1) that the prosecutor suppressed or withheld evidence that is (2) favorable
to the defense-either because it is exculpatory, provides a basis for mitigation
of sentence, or because it provides grounds for impeaching a witness~and (3)
that the suppressed evidence is material."
Slip op. at 25 ( quoting Wilson v. State . 363 Md. 333, 345-46, 768 A.2d 675 (2001)). The
Court held that the State suppressed the information regarding Johnson's refusal to sign the
statement until he got a favor. Id at 33-34. The Court further held that the information was
favorable to Conyers because it would have:
strengthened Petitioner's assertion that Johnson had fabricated Petitioner's
alleged confession in an effort to gamer a benefit on outstanding charges. . .
. Defense counsel was entitled to explore and argue from all of the pertinent
evidence as to Johnson's bias and credibility. Suppression of this evidence
deprived the jurors of a full opportunity to evaluate the credibility of Johnson's
testimony, and Detective Marll 's corroborating testimony, and deprived
Petitioner of potentially valuable impeachment evidence. . . .
Similar to Wilson, the value of the suppressed information as impeachment
31
evidence was confirmed by the State's efforts to conceal it from Petitioner. .
. . The State's conduct continued in its closing arguments at trial and
sentencing, in which it extolled Johnson's credibility as a witness, knowing its
own sins of omission.
IcL at 38-39. The Court held the evidence was favorable even though Johnson was fully
cross-examined as to the plea agreement, and defense counsel vigorously argued to the jury
that Johnson's motive in testifying was to gain a benefit for himself. Vigorous cross-
examination:
does not necessarily vitiate any error caused by the State's failure to disclose
this impeachment evidence. Ware v. State . 363 Md. at 351, 768 A.2d at 684
(stating that cross-examination of a witness regarding inducement "to testify
does not substitute for adequate disclosure"); Boone . 541 F.2d at 451 (noting
that "[n]o matter how good defense counsel's argument may have been, it was
apparent to the jury that it rested upon conjecture - a conjecture which the
prosecution disputed."). See also . Martin v. State . Ala. Crim App. ,
2001 Ala. Crim. App. Lexis 298, 21 (2001) (likening defendant to a "fighter
with one hand tied behind his back ~ the fact that he was able to land a few
punches in cross-examination with one fist did not make the match a fair
one.").
Id at 39.
In discussing materiality, the Court first noted that the standard where the State
knowingly uses perjured testimony is whether there is any reasonable likelihood that the false
testimony affected the jury. IcL at 40 ( citing Napue v. People of III . 360 U.S. 264, 269, 79
S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). The materiality standard pursuant to United
States v. Baelev . 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) and Brady
where the State fails to turn over exculpatory evidence is whether:
"there is a reasonable probability that, had the evidence been disclosed to the
32
defense, the result of the proceeding, would have been different. A 'reasonable
probability 1 is a probability sufficient to undermine confidence in the outcome."
Bagley . 473 U.S. at 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481.
Wilson . 363 Md. at 347; see also Conyers at 41 . The Conyers Court further stated that a
reasonable probability is "'a substantial possibility that ... the result of the trial would have
been different.'" Id (citation omitted).
Based upon the Bagley/Brady standard, the Court in Conyers held that the suppression
of the evidence "relating to Johnson's complete negotiations for a benefit" was material, and
that, had the evidence been disclosed, "there was a substantial possibility that the result
would have been different." Slip op. at 43. The Court noted that Johnson was a key witness
in establishing that Conyers was a principal in the murder, which was a prerequisite for the
application of the death penalty. In addition, the Court held that to prove materiality, it was
not necessary to prove the evidence was insufficient to sustain the conviction absent the
testimony of the key witness. The Conyers Court held that even though there was sufficient
evidence other than Johnson's testimony on the issue of principalship, the "taint" from the
withheld evidence "so undermines confidence in the convictions" that a new trial is
warranted. IdL at 45. Finally, the Court noted that the
importance of Johnson's credibility was evidenced by the State's efforts to
argue his credibility in its last words to the jury. See Wilson . 363 Md. at 355,
768 A.2d at 687 (recognizing that "the 'likely damage' of the State's
suppression of evidence in this case 'is best understood by taking the word of
the prosecutor ... during closing argument.' ") ( quoting Ware . 348 Md. at 53,
702 A.2d at 715 (citations omitted)).
33
Rat 46..
Likewise, the Court of Appeals in Wilson reversed two robbery deadly weapon
convictions based on the State's failure to disclose evidence relating to plea agreements with
two key prosecution witnesses.
The Court held that, although the witnesses testified as to their plea agreements, the
actual agreements were more favorable than the witnesses described to the jury.
The Court specifically held that: "The failure to disclose evidence relating to anv
understanding or agreement with a key witness as to a future prosecution, in particular,
violates due process, because such evidence is relevant to witness's credibility." Id
(Emphasis supplied). 11
c) Analysis
Here, as in Conyers and Wilson , the evidence relating to the plea agreement was
suppressed as it was not disclosed to Appellant prior to trial. Since the evidence of the side
agreement was the term of a plea agreement between the State and its chief witness, and the
"In Wilson, the Court examined additional factors in determining whether the
suppressed evidence was material: *
the specificity of the defendant's request for disclosure of materials; the
closeness of the case against the defendant and the cumulative weight of the
other independent evidence of guilt; the centrality of the particular witness
to the State's case; the significance of the inducement to testify; whether
and to what extent the witness's credibility is already in question; and the
prosecutorial emphasis on the witness's credibility in closing arguments.
363 Md. at 352 (citations omitted).
34
other evidence related to the plea agreement, the evidence was favorable to Appellant.
Conyers . Slip op. at 38; Wilson . 363 Md. at 35 1 . Even the trial court found, as a matter of
fact, that providing the attorney was a benefit. (2/1 1/00-55) 12 While the jury learned through
Appellant's cross-examination of Wilds that the State provided him a free private attorney,
it was not informed whether the State paid his attorney. (2/15/00-68, App. 14) This fact is
relevant to the nature of the benefit provided by the State. Even the State conceded it would
be a benefit if the State paid the attorney. (2/1 1/00-56)
Moreover, the jury never learned that the procedures used by the State in providing
an attorney are rare, and in fact no one including the Public Defender's Office was aware that
this had ever occurred in any other case. The trial court did not permit Appellant to elicit
these facts. (2/23/00-239, 246 App. 15, 19) See infra. Also, the trial court refused to permit
Appellant to inquire what changes were requested by Wilds to the plea agreement during plea
negotiations. (2/15/00-75, App. 16) The jury also never learned that the State withheld the
charges so that Wilds would not qualify for a public defender until after he agreed to be
represented by Benaroya. This evidence could have been used to impeach Wilds, to show
the pressure exerted on Wilds to sign the agreement and testify against Appellant and prevent
him from backing out of his agreement This is relevant to Wilds' bias, motive to testify, and
12 The trial court instructed the jury that"[i]f you find that Jay Wilds' lawyer was
provided with the assistance of the State at no cost, this was a benefit that Mr. Wilds
received as part of his bargain with the State. You may consider this in the same way as
you may consider the plea agreement itself as to what, of any, pressure existed on Mr.
Wilds when he testified in this case." (2/25/00-36)
35
credibility. In any event, vigorous cross-examination as to inducement to testify does not
substitute for full disclosure. Conyers at 39, Ware . 363 Md. at 35 1 . Thus, the evidence was
favorable to Appellant as a matter of law since it relates to the impeachment of the chief
prosecution witness. Seg Conyers . at 38; Wilson . 363 Md. at 346.
In addition, here, as in Conyers . that the evidence was favorable to Appellant is
evidenced by the State's efforts to conceal it. The State's efforts to conceal the evidence
went far beyond the efforts of the State in Conyers that amounted to several carefully-crafted
questions. See Conyers at 38. Here, the State engaged in a pattern of deception including
permitting Wilds to testify falsely that he had completed a binding guilty plea, and repeatedly
denying to the trial court in the face of direct questions its knowledge that the reason for the
ex parte post-plea hearing was that Wilds was having doubts about proceeding further.
Moreover, the State repeatedly objected during cross-examination of Wilds, and moved in
limine to preclude Appellant from asking Wilds questions about how he obtained his
attorney. (2/1 1/00-54) The State also opposed Appellant's requests to call Benaroya and
recall Wilds to testify for the jury.
It is necessary to determine whether the Napue or the Bagley/Brady standard for
materiality applies in the present case. Based upon the fact that the prosecutor knowingly
entered the incomplete plea agreement into evidence, without the side agreement, failed to
elicit the existence of the side agreement from Wilds, and stated on the record to the trial
36
court that there was no side agreement, the stricter Napue standard of materiality applies. 13
The Napue standard is whether there is any reasonable likelihood that the false testimony
affected the jury. Conyers. Slip op. at 40 ( citing Napue v. People of ill . 360 U.S. 264, 269,
79 S.Ct. 1 173, 1 177, 3 L.Ed.2d 1217 (1959) (reversible error for prosecutor to fail to correct
false testimony by its witness that he received no promises of leniency in exchange for his
testimony); see also Wilson . 363 Md. at 346. Had the jury known that Wilds could have
withdrawn from the plea agreement at any time, the jury may well have discredited Wilds'
testimony. The jury may have believed that Wilds would have an additional incentive to
make his testimony more pleasing to the State if he could get out of the agreement, and then
the State would not recharge him. See Wilson. 363 Md. at 347. Thus, the side agreement
in the present case was directly related to the jury's assessment of Wilds' credibility. Since
Wilds was the key prosecution witness upon which the State's entire case rested, the failure
to disclose the side agreement and other impeachment evidence creates a reasonable
likelihood that the suppression affected the jury.
13 In Wilson . 363 Md. at 351, the Court noted:
In addition, the Massachusetts Supreme Judicial Court recently held that
any time that, " 'through misfeasance or nonfeasance by the prosecutor, false
testimony is introduced concerning an arrangement between the witness
and the prosecutor, a strict standard of materiality is applied. A conviction
will be set aside if there is "any reasonable likelihood that the false
testimony could have affected the judgment of the jury." 1 " Commonwealth
v. Hill . 432 Mass. 704, 739 N.E.2d 670, 679 (2000) (quoting
Commonwealth v. Gildav . 382 Mass. 166, 415 N.E.2d 797, 803 (1980)).
37
In the alternative, should this Court find that the Bagley/Brady standard of materiality
is appropriate, that is, that there is a reasonable likelihood or substantial possibility that had
the evidence of the side agreement and other impeachment evidence been disclosed, the
result of the proceeding would have been different, Appellant demonstrates materiality under
that standard as well. In the present case, all of the evidence withheld was material. 14 The
side agreement was material because, had the jury heard about it, it may have found that
Wilds testimony was not credible. It may have determined that Wilds could have been
influenced to make his testimony even more incriminating against Appellant with the thought
that if the State liked his testimony, he could withdraw his plea, withdraw from the
agreement and not be subjected to any criminal charges. 13 The suppression of the provision
of the free attorney and the delayed charges to make Wilds ineligible for a public defender
was material because it was evidence of the State's influence over Wilds and its desperation
14 "[M]ateriality is assessed by considering all of the suppressed evidence
collectively." Wilson . 363 Md. at 347.
15 T^ie Wilson Court held:
* The fact that [the witness] was not aware of the exact terms of the plea
agreement only increases the significance, for purposes of assessing
credibility, of his expectation of favorable treatment.... [A] tentative promise
of leniency might be interpreted by a witness as contingent upon the nature
of his testimony. Thus, there would be a greater incentive for the witness to
try to make his testimony pleasing to the prosecutor. That a witness may
curry favor with a prosecutor by his testimony was demonstrated when the
prosecutor renegotiated a more favorable plea agreement with [the witness]
after [the defendant] was convicted.
363 Md. at 350 (citations omitted).
38
to have Wilds sign the agreement. Had the jury known of all of the circumstances
surrounding the provision of the attorney, it may well have determined that the State's
desperation showed its knowledge of its own weak case. Suppression of evidence of the non-
binding nature of the "guilty plea" hearing was material because the jury did not know that
as a result, the guilty plea was not binding and Wilds would not be bound by the plea
agreement. 16 As stated above, if Wilds is not bound by the plea or the agreement, Wilds
could have been influenced to make his testimony even more incriminating against
Appellant.
The State's closing argument to the jury is additional evidence of materiality in the
present case, as it was in Conyers . The State in which it repeatedly argued Wilds' credibility.
The State argued: "You don't have to like Jay Wilds or like what he did to know that he's
telling the truth." (2/25/00-58) "You know he knows what happened." (2/25/00-58) "Jay
Wilds was sincere. ... He was honest with you." (2/25/00-60) "That makes sense with what
Jay Wilds is telling you." (2/25/00-67) "Now, the Defense told you it's fantastic that Jay
Wilds could look in the trunk of a car for 10 seconds and see taupe stockings and identify
Hey Lee. No, it's not." (2/25/00-127)
16 While it is true that the jury was eventually instructed by the trial court that Wilds
did not yet enter a completed guilty plea because a statement of facts was not provided at
the hearing on September 7, 1999, (2/25/00-35), the jury never learned that the legal
effect of the failure to have a guilty verdict entered meant that Wilds could withdraw his
guilty plea at any time. Regardless of the Maryland Rules, the jury still believed that the
plea agreement was in full force because it was unaware of the side agreement.
39
There was a reasonable likelihood or substantial possibility that absent the suppression
of the side agreement and other impeachment evidence, the result would have been different.
As in Conyers . the nature of Wilds' testimony and his importance to the case rendered the
suppressed evidence material, by the State's own admission: "[l]et's talk about Jay Wilds
because, clearly, this case hinges on his testimony." (2/25/00-57) In addition, Wilds'
credibility was in serious doubt. It was not contested that Wilds had lied in every pretrial
statement he gave to the police. (2/1 1/00-205) Further impeachment by Appellant could have
caused the jury to completely disregard his testimony, which would have resulted in the
acquittal of Appellant. As such, the suppression of the evidence in the present case was
material, constituted a violation of Brady , and Appellant's rights to due process under the 1 4 *
Amendment and Article 24 of the Maryland Declaration of Rights. Appellant's convictions
must therefore be reversed. See Wilson . 363 Md. at 341-42 ( "The failure to disclose
evidence relating to any understanding or agreement with a key witness as to a future
prosecution, in particular, violates due process, because such evidence is relevant to witness's
credibility."). 17 Thus, the evidence withheld was material and violated Brady .
17 The trial court found that the State did not err in suppressing evidence that it
provided Wilds with a free private attorney on the grounds that "the State honestly and in
good faith did not perceive it as a benefit." (2/1 1/00-56, App. 17) The trial court was
clearly erroneous in that the good faith of the prosecutor is irrelevant in a Brady
determination. See Wilson , 363 Md. at 345-46 ("the suppression by the prosecution of
evidence . . . violates due process . . . irrespective of the good faith or bad faith of the
prosecution.") (citation omitted).
40
2. The State's actions constituted prosecutorial misconduct.
a) Facts
The State suppressed material favorable evidence, presented false and incomplete
testimony, misrepresented to the trial court and the jury that Wilds entered a completed guilty
plea, and obstructed Appellant's attempts to obtain information independently from the State.
The State was not truthful with the trial court when it was directly questioned regarding the
reason for the post-plea hearing. This lack of candor was in furtherance of the State
suppressing evidence regarding the plea agreement with its key witness.
b) The Law
The standard for proving prosecutorial misconduct is whether the prosecutor acted in
bad faith, to gain a tactical advantage, and caused actual prejudice to the defendant. See
Clark v. State .. 364 Md. 61 1, 774 A.2d 1 136 (2001) (preindictment delay); see also McNeil
v. State . 1 12 Md, App, 434, 685 A.2d 839 (1996) (prosecutorial misconduct can arise from
failure to provide exculpatory evidence); Arizona v. Youngblood . 488U.S.51,57, 109S.Ct.
333, 337 (1988) (destruction of potentially exculpatory evidence); United States v. Lovasco .
431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) (preindictment delay);
United States v. Marion . 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (preindictment
delay).
c) Analysis
In the present ease, the bad faith of the prosecutor was evident when he knowingly
41
introduced into evidence a plea agreement he knew to be materially incomplete, and failed
to elicit testimony regarding the side agreement from Wilds. The prosecution in bad faith
objected to Benaroya testifying in front of the jury, because then the jury would know that
the prosecutor had not been honest with the jury. The bad faith of the prosecution is most
evident when viewed along with the suppression of the circumstances surrounding the plea
agreement. The pattern of suppression of evidence and misleading statements of the
prosecutor can only lead to the conclusion that the actions were intentional, and meant to
cause harm to Appellant's ability to fully and effectively impeach the main witness against
him. The acts of the State caused actual prejudice, in that Appellant was unable to effectively
cross-examine Wilds as to all of the terms of the plea agreement, including that he could
withdraw from it at any time without a judicial finding that it would be in the interest of
justice. See Maryland Rule 4-242. Moreover, Appellant was actually prejudiced because the
jury did not hear all the terms of the plea agreement, or know that Wilds could withdraw his
plea of guilty at any time. All of the suppressed evidence was exculpatory, in that it would
have negatively effected Wilds' credibility. As such, the jury could not fully and adequately
judge Wilds' credibility. Had the jury had all of the impeachment evidence, it may well have
concluded that Wilds was not to be believed. As the State's case hinged on Wilds'
testimony, Appellant's convictions must be reversed on the grounds of prosecutorial
misconduct.
42
3. The trial court committed reversible error in prohibiting Appellant from calling Benaroya
and recalling Wilds as a witness.
a) Facts
The trial court ruled that Appellant could not call Benaroya as a witness or recall
Wilds as a witness to elicit evidence that the State had an oral side agreement with Wilds
which provided that Wilds could withdraw his plea at any time. The trial court ruled that
Appellant could not call Benaroya or recall Wilds: "I believe that calling [Benaroya] would
not be appropriate and it would just take us off on a needless presentation of evidence. And
I would find that the credibility of Mr. Wilds has been exhausted." (2/22/00-74, App. 9)
b) The Law
In Marshall v. State. 346 Md. 186, 695 A.2d 184 (1997), the Court of Appeals held
that the trial court committed reversible error in limiting the defendant's cross examination
of a witness as to terms of his plea agreement with the State. The Court held that the
defendant was entitled to present evidence of terms of a plea agreement, which is relevant
to the jury's determination of the witness' credibility, bias, and motive to testify falsely. Id
at 197.
c) Analysis
The trial court committed reversible error in failing to permit Appellant to call
Benaroya as a witness or recall Wilds to testify as to the existence of a side oral agreement,
The side agreement was a term of the plea agreement. (2/22/00-64, App. 8) Thus, the trial
43
court erred in ruling that Appellant could not introduce this testimony.
4. The trial court committed reversible error in restricting the cross-examination of Wilds.
a) Facts
The trial court erroneously restricted Appellant's cross examination of Jay Wilds on
issues relating to the plea and other issues. First, Wilds' plea agreement, introduced by the
State, provides that Wilds "represents that he/she has fully and truthfully responded to all
question put to [him] by law enforcement during all prior interviews. (Exhibit 35, page 1
para, la) If Wilds lied in any prior interview, "the State is immediately released from any
obligation under this agreement." Appellant twice attempted to question Wilds about the
effect that his admitted previous lies in prior statements to police had on the plea agreement.
On each occasion, the trial court sustained the State's objections to these questions.
(2/10/00-157, 2/15/00-79, App. 13, 18) In addition, the trial court sustained objections to
Appellant's attempts to learn what changes Wilds sought to the plea agreement during plea
negotiations. (2/15/00-75, App. 16) Also, Appellant asked Wilds whether he knew if anyone
paid his attorney any money. An objection to this question was sustained by the trial court.
(2/15/00-68, App. 14)
b) The Law
In Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997), the Court of Appeals held
that the defendant's Sixth Amendment rights and rights pursuant to Article 21 of the
44
Maryland Declaration of Rights were violated when the trial court refused to permit the
defendant to cross-examine a witness as to a condition of his plea agreement. The Court in
Marshall noted:
The Confrontation Clause of the Sixth Amendment guarantees an accused in
a criminal proceeding the right "to be confronted with the witnesses against
him." Delaware v. VanArsdall. 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89
L.Ed.2d 674, 683 (1 986). This right means more than simply confronting the
witness physically. Davis v. Alaska . 415 U.S. 308, 315, 94 S.Ct. 1 105, 1 1 10,
39 L.Ed.2d 347, 353 (1974). This same right is guaranteed to a criminal
defendant by Article 21 of the Maryland Declaration of Rights. Simmons v.
State . 333 Md. 547, 555-56, 636 A.2d 463, 467, cert, denied . 513 U.S. 815,
1 15 S.Ct. 70, 130 L.Ed.2d 26 (1994). The constitutional right of confrontation
includes the right to cross-examine a witness about matters which affect the
witness's bias, interest or motive to testify falsely. Ebb . 341 Md. at 587, 671
A.2d at 978. An attack on the witness's credibility "is effected by means of
cross-examination directed toward revealing possible biases, prejudices, or
ulterior motives of the witness as they may relate directly to issues or
personalities in the case at hand." Davis . 415 U.S. at 3 16, 94 S.Ct. at 1 1 10, 39
L.Ed.2d at 354.
346 Md. at 1 92, 695 A.2d at 1 87. In addition, the Court stated the trial court:
has no discretion to limit cross-examination to such an extent as to deprive the
accused of a fair trial. See State v. Cox . 298 Md. 1 73, 1 83, 468 A.2d 3 1 9, 324
(1983). In assessing whether the trial court has abused its discretion in the
limitation of cross-examination of a State's witness, the test is whether the jury
was already in possession of sufficient information to make a discriminating
appraisal of the particular witness's possible motives for testifying falsely in
favor of the government.
346 Md. at 194, 695 A.2d at 188. The Court held:
Turning to the case at hand, we conclude that the trial judge erred in limiting
the cross-examination of Edwards. Petitioner was prohibited from asking the
witness any questions about the terms of his plea agreement, and although the
trial judge said defense counsel could ask about motive, the offer was, in
reality, a hollow gesture. Where a witness has a "deal" with the State, the jury
45
is entitled to know the terms of the agreement and to assess whether the "deal"
would reasonably tend to indicate that his testimony has been influenced by
bias or motive to testify falsely.
346 Md. at 197, 695 A.2d at 189 (footnote omitted). The Court held that the error was not
harmless beyond a reasonable doubt:
The jurors were entitled to hear this evidence to enable them to make an
informed judgment as to what weight, if any, to place on the testimony of
Edwards, the State's only eyewitness linking Petitioner to the murder.
Inasmuch as we conclude that defense counsel was denied the opportunity to
cross-examine Edwards, a key prosecution witness, about the condition of
Edwards's plea agreement that he testify at Petitioner's trial, and that agreement
was not otherwise made known to the jury, we conclude that the jury lacked
the opportunity to properly assess Edwards's testimonial motivation or potential
bias. The issue of Edwards's credibility was crucial to the jury's determination
of Petitioner's guilt. Because the jury was not provided with sufficient
information to make a discriminating appraisal of Edwards's possible motives
for testifying falsely or coloring his testimony in favor of the State, we cannot
say that the trial court's error Was harmless beyond a reasonable doubt.
346 Md. at 198, 695 A.2d at 190 (footnote omitted).
c) Analysis
In the present case, the trial court's failure to permit Appellant to ask Wilds about his
plea agreement, specifically, about the effect of his previous lies on the agreement, and about
what terms he wanted to change during negotiations violated Appellant's Sixth Amendment
right and rights under Article 21 to confront and cross-examine witnesses against him. This
evidence was relevant to Wilds' testimonial motivation and credibility. As such, the trial
court erred, and the error was not harmless beyond a reasonable doubt. As in Marshall.
Wilds was the chief prosecution witness. Impeachment of Wilds was the central mission of
46
the defense. Thus, Appellant is entitled to reversal of his convictions. £eg Marshall . 346
Md. at 197; Conyers . Slip op. at 41.
5. The trial court committed reversible error in denying Appellant's motion to strike the
testimony of Wilds.
a) Facts
Appellant moved to strike the testimony of Jay Wilds as one of many remedies it
requested in light of the State's actions discussed above. The trial court erroneously denied
this motion. (2/15/00-34, App. 1 1)
b) The Law
In Taliaferro v. State. 295 Md. 376, 390-91, 456 A.2d 29, 37, cert, denied . 461 U.S.
948, 103 S.Ct 21 14, 77 L.Ed.2d 1307 (1983), the Court approved the trial court's refusal to
let the defendant's alibi witness testify where the name of the witness was not disclosed to
the State until last day of trial. In University of Maryland Medical Syste ms Corp. v. Malorv.
Md. App. , A.2d (No. 1 883, Sept. Term, 2000) (Filed Oct. 31,2001) (200 1
WL 1 335643) WL at 1 1, in a civil context, the Court upheld the trial court's striking of
testimony where party hid evidence in discovery: "This remedy is supported by the holding
in Bartholomee . that 'the injury inherent in failure to make discovery is unfair surprise. It
would seem that the only effective cure for this disease is preclusion of the material
withheld.' Id,"
47
c) Analysis
In light of the fact that the State hid exculpatory evidence relating to the plea
agreement with its chief prosecution witness, the motion should have been granted. Se e
Taliaferro. 295 Md. at 390-91, 456 A.2d at 37; University of Maryland Medical Systems
Corp. WL at 11,
6. The trial court committed reversible error in precluding Appellant from calling Ms. Julian
as a witness.
a) Facts
The trial court erroneously ruled that Appellant could not present testimony from Ms.
Julian, a member of the Office of the Public Defender, who would have testified that the
actions of the State in the present case in procuring a free private attorney for a witness was
so rare that she had never even heard of it before. (2/23/00-239, 246, App. 15, 19)
b) The Law
In Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997), the Court of Appeals held
that the trial court committed reversible error in limiting the defendant's cross examination
of a witness as to terms of his plea agreement with the State, and that the defendant was
entitled to present evidence of terms of a plea agreement, which is relevant to the jury's
determination of the witness' credibility, bias, and motive to testify falsely. In Conyers . the
Court held that evidence of the complete negotiations and circumstances of the plea
48
agreement are material. Slip op. at 41 .
c) Analysis
The trial court erred in restricting Appellant's case. Appellant has the right to put all
of the facts and circumstances surrounding the plea before the jury. Marshall. 346 Md. at
1 97; Conyers . Slip op. at 41 . The jury never heard how unusual it was for the State to act in
such a manner. Had the jury heard this testimony, it may well have concluded that Wilds'
testimony was too coerced by the State to be believed. As such, the trial court committed
reversible error.
7. The trial court committed reversible error in denying Appellant's motion to disclose
documents and information from the State.
a) Facts
The trial court erroneously ruled that Appellant was not entitled to obtain documents
and information from the State regarding communications between Mr. Urick and Wilds'
attorney Ms. Benaroya. (2/1 1/00-41-47, App. 20-21) That request was erroneously denied
on the ground that such a disclosure would violate Wilds' right to have privileged
communications with his attorney. Appellant, however, sought only communications and
information involving the State. (2/ 1 1 /00-4 1 -42)
b) The Law
In E.I, du Pont de Nemours & Co. v. Forma-Pack. Inc. . 351 Md, 396, 416, 718 A.2d
49
1 129 (1998), .the Court held : "for a communication to be confidential, it is essential that it
not be intended for disclosure to third persons. ... 'if a client communicates information to
his attorney with the understanding that the information will be revealed to others, that
information ... will not enjoy the privilege.' United States v. (Under Seal) . 748 F.2d at 875.
See also. [Trupp v. Wolff . 24 Md. App. 588, 609, 335 A.2d 178, 184 (1975)](holding that for
the attorney-client privilege to apply, the subject of communication must be confidential and
not made in the presence of a third person.)."
c) Analysis
This information was not privileged as it involved a third party. Thus, the trial court
committed reversible error. See E.I, du Pont de Nemours & Co. . 351 Md. at 416.
8. The trial court committed reversible error in denying Appellant's motion to question Mr.
Urick out of the presence of the jury,
a) Facts
The trial court denied Appellant's request to question Mr. Urick under oath out of the
presence of the jury as to the fact surrounding the plea agreement, but particularly as to his
communications with Ms. Benaroya and his efforts to obtain her as an attorney for Wilds.
(2/1 1/00-23, App. 10) The trial court based its ruling on its finding that the same information
could be obtained by Appellant questioning Ms. Benaroya and Wilds. Later, however, the
trial court ruled that Appellant could not call Ms. Benaroya as a witness in front of the jury.
50
(2/22/00-74, App. 9)
b) The Law
As stated above, in Marshall v. State . 346 Md. 186, 695 A.2d 184 (1997), the Court
of Appeals held that the trial court committed reversible error in limiting the defendant's
cross examination of a witness as to terms of his plea agreement with the State, and that the
defendant was entitled to present evidence of terms of a plea agreement, which is relevant
to the jury's determination of the witness' credibility, bias, and motive to testify falsely.
c) Analysis
Given the fact that the prosecution suppressed evidence relating to the plea agreement,
and admitted it provided a free attorney to its chief witness, Appellant was entitled to
question Mr. Urick. Since the trial court denied Appellant's request to obtain the information
from other sources, the ruling regarding Mr. Urick constituted reversible error. See
Marshall . 346 Md. at 197.
B. THE TRIAL COURT ERRED IN ADMITTING HEARSAY IN THE
FORM OF A LETTER FROM THE VICTIM TO APPELLANT,
WHICH IS HIGHLY PREJUDICIAL.
1. Standard of Review
The standard of reviewing a trial court's ruling on the admission of evidence is •
whether the trial court erred in admitting the evidence. Banks v. State . 92 Md. App. 422,
51
438, 608 A.2d 1249 (1992). The appellate court must then decide whether the error was
harmless beyond a reasonable doubt. IcL
2. Argument
At trial, the State introduced a letter from Hae to Appellant, on the back of which
Appellant and one of his classmates, Aisha Pittman, allegedly exchanged notes during a high
school class. (State's Exhibit 38, App. 22-23) The letter constituted inadmissible hearsay
which did not fall under any exception to the hearsay rule. In it, Hae told Appellant of her
feelings about the break up, and about her perceptions and opinions as to Appellant's feelings
about the break up.
.... I'm really getting annoyed that this situation is going the way it is. . . .
Your life is NOT going to end. You'll move on and I'll move on. But,
apparently, you don't respect my decision. ... I NEVER wanted to end this
like this, so hostile and cold. . . . Hate me if you will. But you should
remember that I could never hate you.
During trial, the State offered the letter, as Exhibit 38, to be moved into evidence:
[BY THE STATE]: Your Honor, I would ask that State's Exhibit 38 be moved
at this time?
THE COURT: Any objection?
[BY DEFENSE COUNSEL]: I would object.
THE COURT: For the record, I note your objection.
I ask that you indicate a time frame, and, if you are able to do that through this
witness, the exhibit will be admitted.
(Witness states letter was written sometime early in November as were
52
comments on the back)
* * *
THE COURT: Very Well. It'll be admitted over objection.
[BY THE STATE]: Thank you, Your Honor. Your Honor, I would ask to
publish this letter to the jurors by was of Ms. Pittman reading first the front
side and then the back side?
THE COURT: Any objection? I know you have objection to the ~
[BY DEFENSE COUNSEL]: Only to the -
THE COURT: I understand you have an objection ~
[BY DEFENSE COUNSEL]: to the document.
THE COURT: That's preserved. Do you have any objection to the process of
her reading it as opposed to passing it along the jurors and having them read
it?
[BY DEFENSE COUNSEL]: I do. I'd prefer the jurors read it.
THE COURT: I'm gonna allow the witnesses to read the exhibit
(1/28/00-243-45, App. 24-26)
Maryland Rule 5-801 provides:
(a) Statement. A "statement" is (1) an oral or written assertion or (2)
nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.
Rule 5-802 provides: "Except as otherwise provided by these rules or permitted by applicable
constitutional provisions or statutes, hearsay is not admissible." The hearsay letter of the
53
victim allegedly written over two months before her disappearance does not fall under any
exception to the hearsay rule. The letter cannot fall under the state of mind exception found
in Maryland Rule 5-803(b) (3), which provides as follows:
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of
the declarant's then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and
bodily health), offered to prove the declarant's then existing condition or
the declarant's future action, but not including a statement of memory or
belief to prove the fact remembered or believed unless it relates to the
execution, revocation, identification, or terms of declarant's will.
(Emphasis supplied). This exception is inapplicable for several reasons. First, the declarant
speaks not only of her state of mind, but her opinion of Appellant's state of mind. Even if
the letter contained only Hae's state of mind, the letter would be inadmissible because Hae's
state of mind is not relevant to prove any fact at issue.
"Statements offered, not to prove the truth of the matters asserted therein, but
as circumstantial evidence that the declarant had ... a particular state of mind,
when that ... state of mind is relevant, are nonhearsay." McLain, § 801.10 at
282-83 (citations omitted) (emphasis added). Here, even if the statements were
not being offered for their truth, but rather as evidence of McDonald's state of
mind, i.e., fear of appellant, this would not resolve the issue of their
admissibility because evidence must also be both relevant and not unduly
prejudicial.
Banks v. State . 92 Md. App. 422, 434, 608 A.2d 1249 (1992).
Further, although Appellant's state of mind is relevant, Hae's statements about
Appellant's state of mind are inadmissible and do not satisfy the exception. The exception
permits statements by the declarant about the declarant's state of mind, but not statements
54
by the declarant about someone other than the declarant's state of mind. See Maryland Rule
5-803(b)(3).
The introduction of the letter to Appellant was not harmless beyond a reasonable
doubt. The letter referred to Hae's opinion that Appellant was cold, hostile and hateful.
These statements were highly prejudicial, especially where Hae portrayed herself as being
sympathetic and loving. No juror could rationally and reasonably decide the issues in the
case without extreme sympathy for the victim and malice toward Appellant after reading that
letter. As such, it cannot be said that the erroneous introduction of the letter was harmless
beyond a reasonable doubt. See. Banks . 92 Md. App. at 438.
C. THE TRIAL COURT ERRED IN PERMITTING THE
INTRODUCTION OF THE VICTIM'S 62-PAGE DIARY, WHICH
CONSTITUTED IRRELEVANT HIGHLY PREJUDICIAL HEARSAY.
1. Standard of Review
The standard of reviewing a trial court's ruling on the admission of evidence is
whether the trial court erred in admitting the evidence. Banks v. State . 92 Md. App. 422,
438, 608 A.2d 1249 (1992). The appellate court must then decide whether the error was
harmless beyond a reasonable doubt. Id In determining whether there was plain error, the
appellate court must decide whether the error was material to the rights of the defendant,
such that the defendant was deprived of a fair trial. Move v. State . 139 Md. App. 538, 776
A.2d 120, cert, granted . 366 Md. 274 (2001).
55
2. Argument
At trial, the State introduced the 62-page diary of the victim in its entirety. (State's
Exhibit 2, 1/28/00-32, App. 27) Although Appellant did not object at that point, Appellant
objected numerous times when the State asked a witness to read several pages of the diary:
Q If I may, I'll ask you to read for the jurors the entry under May 14, 1998?
[BY DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
A I think I'll try the one week recess Deb suggested. I hope forth and went out
with Iesha [sic], Deb and Sean in Sean's new car. It is so fly with those tinted
windows I couldn't be with my baby because he had to go to D.C. for his
religious stuff That's what I need to figure out. Do I dare to pull him away
from his religion? Ms. Savic [sic] was all up in my face about it. She said stuff
like well Adnan used to be so religious and strict last year but this year he is
so loose, like I changed him. Actually, I did and I don't want to pull him away
from who he is. I think I need time to organize these things but I do not know
that — but I do know one thing. I love him and he loves me. Nothing will
change that. I'll try the recess week and see what happens. I'll probably kill
myself if I lose him but I'll go crazy with things complicating. I wish he'll [sic]
call back soon-
jjc jf; sjs
Q I ask you to read the entry under May 15 th ?
[BY DEFENSE COUNSEL]: Again objection,
THE COURT: Overruled.
A I did it. Me and Adnan are officially on recess week or time out. I don't
know what's going to happen to us. Although I'm in love with him, I don't
know about him. He actually suggests that what we have is like, not love. I
heard the doubt in his voice. Although he couldn't pick up mine, I felt the
56
same way. I like him. No, I love him. It's just all the things that stand in the
middle, his religion and Muslim customs all are in the way. It irks me to know
that I am against his religion. He called me a devil a few times. I knew he was
only joking, but it's somewhat true. I hate that. It's like making him choose
between me and his religion.
The second thing is the possessiveness. Independence rather. I'm a very
independent person. I rarely rely on my parents. Although I love him it's not
like I need him. I know I'll do just fine without him. I need time for myself
and my friends other than him. How dare he get mad at me for planning to
hang out with lesha [sic].
The third thing is the mind play. I've matured out of my jealosy shit. I don't
get jealous over trying to get him jealous as a fool - him trying to get me
jealous is [sic] a fool because I'll definitely lose him ~ me. I prefer a straight
relationship that doesn't get in people mixed up just because he wanted to play
mind games.
The fourth thing is nothing. Because I do love him. It's just all of the shitty
things that are messing with my mind. I'm just too confused. If I don't take
the time to set things straight, the whole thing will blow up ... in my head
making me mad and do something I'll regret forever. That's why I need the
time out. I just hope I don't lose him because of this. I love him. When I hold
him, I want it to be forever. I feel secure and comfy with him. I think he
expected more of a spontaneous combustion. That's not going to happen all
of the time. Our relationship burns lightly at first and then it eventually calms
down. We started strong but now we settle in a boring but secure and loving
relationship. I don't know what he wants. All I want is him to hold on to, to
cuddle up to, kiss when I feel empty inside. Maybe I'm not supposed to be
loved but supposed to love and I thought that I had found another keeper and
maybe I have. Hopefully, we'll go through this and come out much stronger ~
with a much stronger foundation. I love him. I can live without him but I love
him and want him with me. Please Adnan be patient with me, love.
(2/16/00-304-307, App. 28) In addition, the trial court previously ruled that hearsay of the
victim is admissible:
(Out of the presence of the jury)
57
THE COURT: I'm gonna allow the State to inquire as to the relationship that
this witness was aware based on conversations that she had directly with the
defendant or directly with the victim in a period of time preceding the murder.
[BY THE STATE]: I'm sorry. Did you say she can't say anything the victim
told her? THE COURT: She can tell you- she can say what the victim
said, she can say what the defendant said as to their relationship. But beyond
that -
[BY DEFENSE COUNSEL]: At any time prior to her disappearance?
THE COURT: The period of time on or about, as you've indicated, October,
November, December in 1998. However, I will not allow anything other than
what conversations she had with the witness, victim or the defendant. Other
than that, not a we knew, what we all knew, what we all heard. That will not
be permitted. . . .
[BY THE STATE]: Thank you.
[BY DEFENSE COUNSEL]: We would note an objection.
THE COURT: All right.
(1/28/00-136-37, App. ) Further, the issue of the diary was clearly before the court prior to
trial when the State filed a Motion for Admission of Excerpts of Victim's Diary. (R. 560-
576,) Thus, the trial court had before it the issue of the diary, and the issue of the
admissibility of the diary is preserved for appellate review.
The diary itself is inadmissible hearsay which was highly prejudicial to Appellant. It
contained opinions of the victim extremely adverse to Appellant, it contained multiple levels
of hearsay, and inadmissible bad acts of Appellant. The diary is inadmissible hearsay which
does not fall under any exception to the hearsay rule. Banks v. State . 92 Md. App. 422, 434,
58
608 A.2d 1249 (1992).
In Banks , the trial court admitted the victim's statements that he feared the defendant,
that he and the defendant had been arguing, and that the defendant had been violent toward
him. The State contended on appeal that the statements were not hearsay, because they were
offered to prove the victim's state of mind. The Court of Special Appeals rejected this
argument, and agreed with the defendant that the statements constituted inadmissible
hearsay:
A recurring problem arises in connection with the admissibility of accusatory
statements made before the act by the victims of homicide. If the statement is
merely an expression of fear, i.e. "I am afraid of D," no hearsay problem is
involved since the statement falls within the hearsay exception for statements
of mental or emotional condition. This does not, however, resolve the question
of admissibility. Since nothing indicates that the victim's emotional state is in
issue in the case, the purpose of the offer of the statement must be to suggest
the additional step of inferring some further fact from the existence of the
emotional state. The obvious inference from the existence of fear is that some
conduct of D, probably mistreatment or threats, occurred to cause the fear. The
possibility of overpersuasion, the prejudicial character of the evidence, and the
relative weakness and speculative nature of the inference, all argue against
admissibility as a matter of relevance. Even if one is willing to allow the
evidence of fear standing alone, however, the fact is that such cases seem to
occur but rarely. In life, the situation assumes the form either of a statement by
the victim that D has threatened him, from which fear may be inferred, or
perhaps more likely a statement of fear because D has threatened him. In either
event, the cases have generally excluded the evidence. Not only does the
evidence possess the weaknesses suggested above for expressions of fear
standing alone, but in addition it seems unlikely that juries can resist using the
evidence for forbidden purpose in the presence of specific disclosure of
misconduct of D.. . .
Here, McDonald's state of mind as a victim was irrelevant to the
commission of the crime. (It was only appellant's state of mind that was
relevant.) Further, any probative value of the statements as to the victim's state
59
of mind would be outweighed by the extremely prejudicial nature of the
evidence. Accordingly, the trial court erred in admitting the disputed
testimony. See Buckeye Powder Co. v. DuPont Powder Co. . 248 U.S. 55, 65,
39 S.Ct. 38, 40, 63 L.Ed. 123 (1918) (where state of mind testimony is sought
to be used in an attempt to demonstrate the truth of the underlying facts rather
than solely to show state of mind, evidence must be excluded); United States
v. Day . 591 F.2d 861, 881 (D.C.Cir.1979) (testimony of threats made by
defendant to victim excluded on grounds of "hearsay problems and questions
of relevancy and prejudice"); United States v. Brown. 490 F.2d 758, 763 n. 10
(D.C.Cir.1973) (where state of mind testimony is sought to be used in an
attempt to demonstrate the truth of the underlying facts rather than solely to
show state of mind, evidence must be excluded); Commonwealth v. DelValle .
351 Mass. 489, 221 N.E.2d 922, 924 (1966) (testimony of threats made by
defendant against victim inadmissible to rebut suicidal state of mind where
introduced in State's case-in-chief and there was no evidence from the defense
of victim's suicidal tendencies).
92 Md. App. at 434-36. The Court held that the error warranted reversal even where the
defendant admitted to police that she killed the victim. 92 Md. App. at 427, 439.
In the present case, the diary entries reflect in great detail Hae's feelings for Appellant,
and how she was in love with Appellant, her own fear of being apart from him, and her
anguish over the feet that dating is against Appellant's religious beliefs. Aside from causing
the jury to have extremely sympathetic emotions for Hae, her state of mind has nothing
whatsoever to do with whether or not Appellant killed her.
The State, in its Motion, argues that Hae's state of mind is relevant "because an
understanding of the defendant and victim's relationship is vital to a showing of motive,
malice and premeditation." (R. 562) The State further argues that because the diary refers
to the religious beliefs of Appellant and that Hae believed the relationship with Appellant
would end because of these beliefs the diary is relevant and admissible. Id
60
The State's argument is flawed. First, the fact that Appellant and Hae broke up
because of religious difficulties was not contested at trial. Second, the fact that Hae had been
' seeing another young man before her death was not contested at trial. Whether Appellant
became enraged by these circumstances, as the State argues, and killed Hae was the issue to
be determined by the jury. Hae's mental state has nothing to do with Appellant's mental
state. Hae's feelings about the religious difficulties caused by their dating and Hae's
feelings about the breakup are not relevant, and in fact are highly prejudicial. As the Court
in Banks stated, "McDonald's state of mind as a victim was irrelevant to the commission of
the crime. (It was only appellant's state of mind that was relevant.)." 92 Md. App. at 435. 18
In its Motion, the State argues that the diary is admissible as a then existing mental,
emotional or physical condition pursuant to Maryland Rule 5-803(b)(3)(l). It also contends
that the victim's state of mind is relevant and admissible. Both of these contentions are
erroneous.
Maryland Rule 5-803 (b) provides an exception to the hearsay rule for statements
^Distinguish Case v. State , 1 18 Md. App. 279, 284, 702 A.2d 777, 779 (1997): "In
this case, the victim's state of mind was of significant consequence to the issue of whether
she had invited appellant into her home and had voluntarily positioned herself close
enough to him that she would become the victim of an accidental shooting. To determine
whether the victim's death was a homicide or an accident, the jurors were entitled to
know that, after appellant moved out of the victim's residence, she expressed her fear of
him, changed the locks, installed motion sensor lights, and made adjustments to the
windows so they could not be opened. Maryland Rule 5-401."
61
"offered to prove the declarant's then existing condition or the declarant's future action. . .
." As stated above, the victim's state of mind is not relevant in this case. Moreover, the diary
was not admitted to prove Hae's state of mind, but rather to inflame the passions of the jury
with passages such as: "I'll probably kill myself if I lose him. . . ." As such, the diary
constitutes rank inadmissible hearsay.
The error was not harmless beyond a reasonable doubt. The diary contains highly
prejudicial hearsay about Hae's feelings, her love of her family, what other people said to her
about her relationship with Appellant, and a plethora of other inflammatory material. The
only possible impact this diary could have had on the jury was to cause a great deal of
sympathy for Hae and engender prejudice against Appellant. Since there was no limiting
instruction, the jury was invited to use each and every sentence of the 62-page diary as
substantive evidence. Even where the evidence in a case is "very strong," the appellate court
must reverse unless it can say beyond a reasonable doubt that the error "in no way"
influenced the verdict. Richardson v. State 324 Md. 61 1, 624, 598 A.2d 180 (1991). In the
present case, the entire case against Appellant "hinged" on one witness, Jay Wilds. The
evidence is far from strong. The diary was overwhelmingly prejudicial to Appellant such that
its admission denied him a fair trial. Appellant has the right under the due process clause of
the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights to be tried
by a jury that is not afflicted with prejudice against him. Further, the introduction of hearsay
evidence denied him the right to confront and cross-examine witnesses against him. Thus,
62
the error in admitting the diary was not harmless beyond a reasonable doubt.
In the alternative, if this Court finds that all or part of the issue was not preserved, the
admission of the diary and reading excerpts constitute plain error. The appellate courts have
"independent discretion" to excuse the failure of a party to preserve an issue for appellate
review. Moosavi v. State . 355 Md. 651, 661 736 A.2d 285 (1999); Move v. State . 139 Md.
App. 538, 776 A.2d 120 (2001). Se£ also Maryland Rule 8-131. Appellate courts will
consider unpreserved errors where the issue is "compelling, extraordinary, exceptional, or
fundamental to assure the defendant a fair trial." Move v. State . 139 Md. App. 538, 776 A.2d
120 (2001). As stated above, the introduction of the diary and reading excerpts of the diary
deprived Appellant of his fundamental rights to a fair trial and to confront and cross-examine
witnesses against him. As such, Appellant is entitled to a new trial. See Cluster v. Cole. 2 1
Md. App. 242, 249, 319 A.2d 320, 324 (1974) (recognizing as plain error and reversible
error the admission of hearsay).
V. CONCLUSION
For the foregoing reasons, Appellant requests that the judgments of the court below
be reversed, and that his convictions be reversed. 19
19 Pursuant to Maryland Rule 8-504(a)(8), this brief has been printed with
proportionally spaced type Times New Roman 13 point.
63
WARREN A. BRO
1200 Court Square Building
200 E. Lexington Street
Baltimore, Maryland 21202
(410) 576-3900
isa J. Sansome,lB&luire
Law Office of Lisa J. Sansone
1002 Frederick Road
Baltimore, Maryland 21228
(410)719-0221
Attorneys for Appellant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this jKj day of February, 2002, two copies of the
foregoing Brief of Appellant were mailed first class, postage pre-paid, to Office of the
Attorney General, 200 St. Paul Place, Baltimore, Maryland 21202.
WARREN A. BROWN, P.A.
1200 Court Square Building
200 E. Lexington Street
Baltimore, Maryland 21202
(410) 576-3900
Attorney for Appellant
64
PERTINENT AUTHORITIES
U.S. Const. Amend. VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the Assistance of
Counsel for his defence.
U.S. Const Amend. XIV
Section 1 . All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding Indians
not taxed. But when the right to vote at any election for the choice of electors for President
and Vice President of the United States, Representatives in Congress, the Executive and
Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the
male inhabitants of such State, being twenty-one years of age, and citizens of the United
States, or in any way abridged, except for participation in rebellion, or other crime, the basis
of representation therein shall be reduced in the proportion which the number of such male
citizens shall bear to the whole number Of male citizens twenty-one years of age in such
State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President
and Vice President, or hold any office, civil or military, under the United States, or under any
State, who, having previously taken an oath, as a member of Congress, or as an officer of the
United States, or as a member of any State legislature, or as an executive or judicial officer
of any State, to support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But
Congress may by a vote of two-thirds of each House,
remove such disability.
65
Section 4. The validity of the public debt of the United States, authorized by law, including
debts incurred for payment of pensions and bounties for services in suppressing insurrection
or rebellion, shall not be questioned. But neither the United States nor any State shall assume
or pay any debt or obligation incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave; but all such debts, obligations
and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
Article 21, Md. Decl. Rights
That in all criminal prosecutions, every man hath a right to be informed of
the accusation against him; to have a copy of the Indictment, or charge, in due
time (if required) to prepare for his defence; to be allowed counsel; to be
confronted with the witnesses against him; to have process for his witnesses;
to examine the witnesses for and against him on oath; and to a speedy trial by
an impartial jury, without whose unanimous consent he ought not to be found
guilty.
Article 24, Md. Decl. Rights. Due process.
That no man ought to be taken or imprisoned or disseized of his freehold, liberties or
privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty
or property, but by the judgment of his peers, or by the Law of the land.
MARYLAND RULE 4-242. PLEAS
(a) Permitted Pleas. A defendant may plead not guilty, guilty, or, with the
consent of the court, nolo contendere. In addition to any of these pleas, the
defendant may enter a plea of not criminally responsible by reason of insanity.
(b) Method of Pleading.
(1) Manner. A defendant may plead not guilty personally or by counsel on the
record in open court or in writing. A defendant may plead guilty or nolo
contendere personally on the record in open court, except that a corporate
defendant may plead guilty or nolo contendere by counsel or a corporate
officer. A defendant may enter a plea of not criminally responsible by reason
of insanity personally or by counsel and the plea shall be in writing.
66
(2) Time in the District Court. In District Court the defendant shall
initially plead at or before the time the action is called for trial.
(3) Time in Circuit Court. In circuit court the defendant shall initially
plead within 15 days after the earlier of the appearance of counsel or the
first appearance of the defendant before the circuit court pursuant to Rule 4-
213 (c). If a motion, demand for particulars, or other paper is filed that
requires a ruling by the court or compliance by a party before the defendant
pleads, the time for pleading shall be extended, without special order, to 1 5
days after the ruling by the court or the compliance by a party. A plea of not
criminally responsible by reason of insanity shall be entered at the time the
defendant initially pleads, unless good cause is shown.
(4) Failure or Refusal to Plead. If the defendant fails or refuses to plead
as required by this section, the clerk or the court shall enter a plea of not
guilty.
(c) Plea of Guilty. The court may accept a plea of guilty only after it
determines, upon an examination of the defendant on the record in open court
conducted by the court, the State's Attorney, the attorney for the defendant,
or any combination thereof, that (1) the defendant is pleading voluntarily,
with understanding of the nature of the charge and the consequences of the
plea; and (2) there is a factual basis for the plea. In addition, before
accepting the plea, the court shall comply with section (e) of this Rule. The
court may accept the plea of guilty even though the defendant does not admit
guilt. Upon refusal to accept a plea of guilty, the court shall enter a plea of
not guilty.
(d) Plea of Nolo Contendere. A defendant may plead nolo contendere only with
the consent of court. The court may require the defendant or counsel to provide
information it deems necessary to enable it to determine whether or not it will
consent. The court may accept the plea only after it determines, upon an *
examination of the defendant on the record in open court conducted by the
court, the State's Attorney, the attorney for the defendant, or any combination
thereof, that the defendant is pleading voluntarily with understanding of the
nature of the charge and the consequences of the plea. In addition, before
accepting the plea, the court shall comply with section (e) of this Rule.
Following the acceptance of a plea of nolo contendere, the court shall proceed
to disposition as on a plea of guilty, but without finding a verdict of guilty.
If the court refuses to accept a plea of nolo contendere, it shall call upon
the defendant to plead anew.
(e) Collateral Consequences of a Plea of Guilty or Nolo Contendere. Before
the court accepts a plea of guilty or nolo contendere, the court, the State's
Attorney, the attorney for the defendant, or any combination thereof shall
67
advise the defendant (1) that by entering the plea, if the defendant is not a
United States citizen, the defendant may face additional consequences of
deportation, detention, or ineligibility for citizenship and (2) that the
defendant should consult with defense counsel if the defendant is represented
and needs additional information concerning the potential consequences of the
plea. The omission of advice concerning the collateral consequences of a plea
does not itself mandate that the plea be declared invalid.
(f) Plea to a Degree. A defendant may plead not guilty to one degree and
plead guilty to another degree of an offense which, by law, may be divided into
degrees.
(g) Withdrawal of Plea. At any time before sentencing, the court may permit
a defendant to withdraw a plea of guilty or nolo contendere when the withdrawal
serves the interest of justice. After the imposition of sentence, on motion of
a defendant filed within ten days, the court may set aside the judgment and
permit the defendant to withdraw a plea of guilty or nolo contendere if the
defendant establishes that the provisions of section (c) or (d) of this Rule
were not complied with or there was a violation of a plea agreement entered
into pursuant to Rule 4-243. The court shall hold a hearing on any timely
motion to withdraw a plea of guilty or nolo contendere.
MARYLAND RULE 5-801. DEFINITIONS
The following definitions apply under this Chapter:
(a) Statement. A "statement" is (1) an oral or written assertion or (2)
nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.
MARYLAND RULE 5-802. HEARSAY RULE
Except as otherwise provided by these rules or permitted by applicable
constitutional provisions or statutes, hearsay is not admissible.
MARYLAND RULE 5-803. HEARSAY EXCEPTIONS: UNAVAILABILITY OF
DECLARANT NOT REQUIRED
The following are not excluded by the hearsay rule, even though the declarant
68
is available as a witness:
(a) Statement by Party-Opponent. A statement that is offered against a party
and is:
(1) The party's own statement, in either an individual or representative
capacity;
(2) A statement of which the party has manifested an adoption or belief in
its truth;
(3) A statement by a person authorized by the party to make a statement
concerning the subject;
(4) A statement by the party's agent or employee made during the agency or
employment relationship concerning a matter within the scope of the agency or
employment; or
(5) A statement by a coconspirator of the party during the course and in
furtherance of the conspiracy.
(b) Other Exceptions.
(1) Present Sense Impression. A statement describing or explaining an event
or condition made while the declarant was perceiving the event or condition, or
immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by
the event or condition.
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of
the declarant's then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and
bodily health), offered to prove the declarant's then existing condition or the
declarant's future action, but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant's will.
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements
made for purposes of medical treatment or medical diagnosis in contemplation of
treatment and describing medical history, or past or present symptoms, pain, or
sensation, or the inception or general character of the cause or external
sources thereof insofar as reasonably pertinent to treatment or diagnosis in
contemplation of treatment.
(5) Recorded Recollection. See Rule 5-802. 1(e) for recorded recollection.
(6) Records of Regularly Conducted Business Activity. A memorandum, report,
record, or data compilation of acts, events, conditions, opinions, or diagnoses
if (A) it was made at or near the time of the act, event ? or condition, or the
rendition of the diagnosis, (B) it was made by a person with knowledge or from
information transmitted by a person with knowledge, (C) it was made and kept in
69
the course of a regularly conducted business activity, and (D) the regular
practice of that business was to make and keep the memorandum, report, record,
or data compilation. A record of this kind may be excluded if the source of
information or the method or circumstances of the preparation of the record
indicate that the information in the record lacks trustworthiness. In this
paragraph, "business" includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for profit.
(7) Absence of Entry in Records Kept in Accordance with Subsection (b)(6).
Unless the circumstances indicate a lack of trustworthiness, evidence that a
diligent search disclosed that a matter is not included in the memoranda,
reports, records, or data compilations kept in accordance with subsection
(b)(6), when offered to prove the nonoccurrence or nonexistence of the matter,
if the matter was of a kind about which a memorandum, report, record, or data
compilation was regularly made and preserved.
(8) Public Records and Reports.
(A) Except as otherwise provided in this paragraph, a memorandum, report,
record, statement, or data compilation made by a public agency setting forth
(i) the activities of the agency;
(ii) matters observed pursuant to a duty imposed by law, as to which
matters there was a duty to report; or
(iii) in civil actions and when offered against the State in criminal
actions, factual findings resulting from an investigation made pursuant to
authority granted by law.
(B) A record offered pursuant to paragraph (A) may be excluded if the
source of information or the method or circumstance of the preparation of the
record indicate that the record or the information in the record lacks
trustworthiness.
(C) A record of matters observed by a law enforcement person is not
admissible under this paragraph when offered against an accused in a criminal
action.
(D) This paragraph does not supersede specific statutory provisions
regarding the admissibility of particular public records.
(9) Records of Vital Statistics. Except as otherwise provided by statute,
records or data compilations of births, fetal deaths, deaths, or marriages, if
the report thereof was made to a public office pursuant to requirements of law.
(inadmissibility of certain information when paternity is contested) and § 5-
3 1 1 (admissibility of medical examiner's reports).
(10) Absence of Public Record or Entry. Unless the circumstances indicate a
lack of trustworthiness, evidence in the form of testimony or a certification
in accordance with Rule 5-902 that a diligent search has failed to disclose a
70
record, report, statement, or data compilation made by a public agency, or an
entry therein, when offered to prove the absence of such a record or entry or
the nonoccurrence or nonexistence of a matter about which a record was
regularly made and preserved by the public agency.
(11) Records of Religious Organizations. Statements of births, marriages,
divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or
other similar facts of personal or family history, contained in a regularly
kept record of a religious organization.
(12) Marriage, Baptismal, and Similar Certificates. Statements of fact
contained in a certificate that the maker performed a marriage or other
ceremony or administered a sacrament, made by a member of the clergy, public
official, or other person authorized by the rules or practices of a religious
organization or by law to perform the act certified, and purporting to have
been issued at the time of the act or within a reasonable time thereafter.
(13) Family Records. Statements of fact concerning personal or family
history contained in family Bibles, genealogies, charts, engravings on rings,
inscriptions on family portraits, engravings on urns, crypts, or tombstones or
the like.
(14) Records of Documents Affecting an Interest in Property. The record of a
document purporting to establish or affect an interest in property, as proof of
the content of the original recorded document and its execution and delivery by
each person by whom it purports to have been executed, if the record is a
record of a public office and a statute authorizes, the recording of documents
of that kind in that office.
(15) Statements in Documents Affecting an Interest in Property. A statement
contained in a document purporting to establish or affect an interest in
property if the matter stated was relevant to the purpose of the document,
unless dealings with the property since the document was made have been
inconsistent with the truth of the statement or the purport of the document or
the circumstances otherwise indicate lack of trustworthiness.
(16) Statements in Ancient Documents. Statements in a document in existence
twenty years or more, the authenticity of which is established, unless the
circumstances indicate lack of trustworthiness.
(17) Market Reports and Published Compilations. Market quotations,
tabulations, lists, directories, and other published compilations, generally
used and reasonably relied upon by the public or by persons in particular
occupations.
(18) Learned Treatises. To the extent called to the attention of an expert
witness upon cross-examination or relied upon by the expert witness in direct
examination, statements contained in a published treatise, periodical, or
71
pamphlet on a subject of history, medicine, or other science or art,
established as a reliable authority by the testimony or admission of the
witness, by other expert testimony, or by judicial notice. If admitted, the
statements may be read into evidence but may not be received as exhibits.
(19) Reputation Concerning Personal or Family History. Reputation, prior to
the controversy before the court, among members of a person's family by blood,
adoption, or marriage, or among a person's associates, or in the community,
concerning a person's birth, adoption, marriage, divorce, death, or other
similar feet of personal or family history.
(20) Reputation Concerning Boundaries or General History.
(A) Reputation in a community, prior to the controversy before the court,
as to boundaries of, interests in, or customs affecting lands in the
community.
(B) Reputation as to events of general history important to the community,
state, or nation where the historical events occurred.
(21) Reputation as to Character. Reputation of a person's character among
associates or in the community.
(22) [Vacant]. There is no subsection 22.
(23) Judgment as to Personal, Family, or General History, or Boundaries.
Judgments as proof of matters of personal, family, or general history, or
boundaries, essential to the judgment, if the matter would be provable by
evidence of reputation under subsections (19) or (20).
(24) Other Exceptions. Under exceptional circumstances, the following are
not excluded by the hearsay rule, even though the declarant is available as a
witness : A statement not specifically covered by any of the foregoing
exceptions but having equivalent circumstantial guarantees of trustworthiness,
if the court determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point for which it
is offered than any other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules and the
interests of justice will best be served by admission of the statement into
evidence. A statement may not be admitted under this exception unless the
proponent of it makes known to the adverse party, sufficiently in advance of
the trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it, the intention to offer the statement and the particulars of
it, including the name and address of the declarant.
MARYLAND RULE 8-131. SCOPE OF REVIEW
(a) Generally. The issues of jurisdiction of the trial court over the
72
subject matter and, unless waived under Rule 2-322, over a person may be raised
in and decided by the appellate court whether or not raised in and decided by
the trial court. Ordinarily, the appellate court will not decide any other
issue unless it plainly appears by the record to have been raised in or decided
by the trial court, but the Court may decide such an issue if necessary or
desirable to guide the trial court or to avoid the expense and delay of another
appeal.
(b) In Court of Appeals-Additional Limitations.
(1) Prior Appellate Decision. Unless otherwise provided by the order
granting the writ of certiorari, in reviewing a decision rendered by the Court
of Special Appeals or by a circuit court acting in an appellate capacity, the
Court of Appeals ordinarily will consider only an issue that has been raised in
the petition for certiorari or any cross-petition and that has been preserved
for review by the Court of Appeals. Whenever an issue raised in a petition for
certiorari or a cross-petition involves, either expressly or implicitly, the
assertion that the trial court committed error, the Court of Appeals may
consider whether the error was harmless or non-prejudicial even though the
matter of harm or prejudice was not raised in the petition or in a cross-
petition.
(2) No Prior Appellate Decision. Except as otherwise provided in Rule 8-
304(c), when the Court of Appeals issues a writ of certiorari to review a case
pending in the Court of Special Appeals before a decision has been rendered by
that Court, the Court of Appeals will consider those issues that would have
been cognizable by the Court of Special Appeals.
(c) Action Tried Without a Jury. When an action has been tried without a
jury, the appellate court will review the case on both the law and the
evidence. It will not set aside the judgment of the trial court on the
evidence unless clearly erroneous, and will give due regard to the opportunity
of the trial court to judge the credibility of the witnesses. .
(d) Interlocutory Order. On an appeal from a final judgment, an
interlocutory order previously entered in the action is open to review by the
Court unless an appeal has previously been taken from that order and decided on
the merits by the Court.
(e) Order Denying Motion to Dismiss. An order denying a motion to dismiss
for failure to state a claim upon which relief can be granted is reviewable
only on appeal from the judgment.
MARYLAND RULE 8-504. CONTENTS OF BRIEF
73
(a) Contents. A brief shall comply with the requirements of Rule $- 1 12 and
include the following items in the order listed:
(1) A table of contents and a table of citations of cases, constitutional
provisions, statutes, ordinances, rules, and regulations, with cases
alphabetically arranged. When a reported Maryland case is cited, the citation
shall include a reference to- the official Report.
(2) A brief statement of the case, indicating the nature of the case, the
course of the proceedings, and the disposition in the lower court, except that
the appellee's brief shall not contain a statement of the case unless the
appellee disagrees with the statement in the appellant's brief.
(3) A statement of the questions presented, separately numbered, indicating
the legal propositions involved and the questions of fact at issue expressed in
the terms and circumstances of the case without unnecessary detail.
(4) A clear concise statement of the facts material to a determination of the
questions presented, except that the appellee's brief shall contain a statement
of only those additional facts necessary to correct or amplify the statement in
the appellant's brief. Reference shall be made to the pages of the record
extract supporting the assertions. If pursuant to these rules or by leave of
court a record extract is not filed, reference shall be made to the pages of
the record or to the transcript of testimony as contained in the record .
(5) Argument in support of the party's position.
(6) A short conclusion stating the precise relief sought.
(7) The citation and verbatim text of all pertinent constitutional
provisions, statutes, ordinances, rules, and regulations except that the
appellee's brief shall contain only those not included in the appellant's
brief.
(8) If the brief is prepared with proportionally spaced type, the font used
and the type size in points shall be stated on the last page.
(b) Appendix. The appellant shall reproduce, as an appendix to the brief,
the pertinent part of every ruling, opinion, or jury instruction of each lower
court that deals with points raised by the appellant on appeal. If the appellee
believes that the part reproduced by the appellant is inadequate, the appellee
shall reproduce, as an appendix to the appellee's brief, any additional part of
the instructions or opinion believed necessary by the appellee.
(c) Effect of Noncompliance. For noncompliance with this Rule, the appellate
court may dismiss the appeal or make any other appropriate order with respect
to the case, including an order that an improperly prepared brief be reproduced
at the expense of the attorney for the party for whom the brief was filed.
74
APPENDIX
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STATE OF MARYLAND V. Jay Wilds
CASE NUMBER: CC#998B05801
AGREEMENT
This Agreement contains the terms and conditions that have
been reached between the Office of the S bate's Attorney for
Baltimore City, referred to in this Agreement as the "State," and
the Defendant in the above-captioned case, referred to in this
Agreement as the "Defendant."
The terms of this Agreement are as follows:
1. The Defendant agrees to cooperate with the State on the
following terms and conditions:
a. The Defendant represents that he/she has fully and
truthfully responded to all questions put to Defendant by law
enforcement authorities during all prior interviews. If at any
point it becomes evident the Defendant has not been truthful
concerning his involvement in this incident, the State is
immediately released from any obligation under this agreement, the
agreement becomes null and void, and the State is free to bring
any charge against the Defendant supported by the evidence. The
Defendant shall continue to cooperate fully with the State by
providing full, complete and candid information concerning the
murder of Hae Min Lee of which Defendant has knowledge.
b. The Defendant shall cooperate completely with the State
and any other Law Enforcement Authorities designated by the State,
including Federal Authorities in any matter as to which
Defendant's cooperation may be relevant. Defendant shall comply
with any and all reasonable instructions from such authorities
with respect to the specific assistance that Defendant shall
provide .
c. The Defendant shall testify fully and truthfully before a
State or Federal Grand Jury and at all trials or other proceedings
in which Defendant's testimony may be relevant.
d. The Defendant agrees to make himself available as needed
for any court hearings and or trials where his testimony is
needed. He shall be responsible for seeing the State has the
means to contact him. Further, the State will request a warrant
for the Defendant's arrest if he is in violation of this
paragraph.
1
■ /
1
3. Nothing in this Agreement shall be construed to protect
the Defendant from prosecution for perjury, false statement,
obstruction of justice or any other crime. This Agreement does
not protect Defendant in any way from any prosecution for offenses
which occur after the execution of this Agreement or for any
crimes that may have occurred prior to this Agreement and are not
a part of this Agreement as enumerated above.
4. If the Defendant compromises these investigations
intentionally or through gross negligence, if Defendant is not
completely candid and truthfully in the performance of this
Agreement, if Defendant flees, attempts to flee, or fails to
appear for Defendant's sentencing, the State and the Court will be
completely released from any obligations under this Agreement and
the State may recommend and the Court may impose the maximum
penalties for each and every offense to' which the Defendant has
tendered a guilty plea pursuant to this Agreement. This includes
the State's invocation of the minimum mandatory years.
5 . The Defendant shall not be permitted to withdraw a guilty
plea tendered pursuant to this Agreement under any circumstances »
6. The Defendant understands that this Agreement is as it
appears and that it is a very harsh Agreement. The State makes no
representation that this Agreement will be easy for the Defendant
to complete.
7 . The Defendant agrees not to ever disclose the terms of
this Agreement or the existence of this Agreement to anyone except
the Defendant's attorney if the Defendant has acquired legal
counsel. In addition, the Defendant agrees not to disclose the
names or other identify of any law enforcement authorities who are
a party to or otherwise involved in the performance of this
Agreement.
8. The State reserves the right to require the Defendant to
perform specific acts in regard to the investigation and targeting
or specific individuals or organizations. The State may require
the Defendant to sign an Addendum to this Agreement that
identifies those specific acts.
9. There are no other agreements, promises or understandings
between the Defendant and the State. This Agreement can only be
amended in a writing signed by all the parties.
10. The Defendant expressly waives any right to a preliminary
hearing or indictment by a Grand Jury.
App. 2
h. The Defendant will tender a guilty plea to:
One count of Accessory After the Fact to
the Murder of Hae Min Lee v
and the Defendant expresses that Defendant fully understands the
maximum penalties and fines for each and every charge as stated.
2. In consideration for the complete fulfillment by the
Defendant of each any every term and condition of this Agreement,
the State agrees to do the following:
a. At the time the Defendant executes this Agreement and
tenders a guilty pleas as stated above, the State will recommend
to the Court that disposition be set at a future date,
specifically: at a date after all trials where defendant's
testimony will be needed.
b. When the Defendant appears before the Court for
sentencing for the offense(s) to which Defendant has pled guilty,
the State will bring to the court's attention and the Court will
consider:
i. the nature and extent of Defendant's cooperation;
ii . all other relevant information regarding the
Defendant's background, character-, and conduct, including the
conduct that is subject of the various counts of the above-
captioned indictments ( s ) ;
iii. any failure by Defendant to fulfill any or all of
Defendant's obligations pursuant to this Agreement.
c. At Defendant's sentencing, the State will make a
recommendation regarding the sentence Defendant shall receive
based upon the extent of Defendant's cooperation pursuant to this
Agreement. If the Defendant completes all of the terms and
conditions stated in this Agreement to the satisfaction of the
State, the State will recommend a sentence as follows: Five years
to the Department of Correction with all but two years suspended,
with three years supervised probation, said recommendation to
serve as a cap.
d. If the Defendant fails to complete each and every
obligation under this Agreement, the State will recommend a
sentence as follows : Five years to the Department of Corrections .
e. Whether or not the Defendant has completely fulfilled fell
of the obligations stated in this Agreement shall be determined by
the Court at the time of Defendant's sentencing.
2 ; ^
I) 1. 1
^2Ln^ (fa* 9 hh? '
Assistant State's Attorney for ' 7 Date
Baltimore City
Narcotics Unit
I have read this Agreement carefully and reviewed every part
of it with my attorney. If I do not have an attorney, I expressly
state that I understand this Agreement and enter into this
Agreement freely and voluntarily without any duress or coercion by
anyone whatsoever.
Defendant/ ^ ' ~ Date
I am the attorney for the Defendant. I have carefully
reviewed very part of this Agreement with the Defendant. To my
knowledge the Defendant's decision to enter into this Agreement is
an informed and voluntary one.
.. , , jjd^A£^=^ , _ z_
Attorney for the Defendanj/ '. Date
4
App. 4
1 A Because he could harm her. -■
2 (Brief pause . )
3 (State's Exhibit No. 3 5
4 was marked for purposes
5 of identification.)
6 MR. URICK: If I may approach the witness at
7 this time, I'm going to show him what has been marked for
8 identification as State's Exhibit 35.
9 THE COURT: Yes, you may.
10 BY MR. URICK:
11 Q Take a few moments and look at that, if you
12 would, please, and examine each page.
13 A Okay .
14 THE COURT: One moment.
15 (Brief pause.)
16 THE COURT : You may continue .
17 BY MR. URICK:
18 Q Have you had a chance to examine the exhibit?
19 A Yes.
20 Q Can you identify that exhibit?
21 A Yes.
22 Q What is that exhibit?
23 A It's the agreement I signed.
24 Q And that's the plea agreement you entered into
25 when you pled guilty to accessory in this murder?
162
1 A Yes .
2 Q And what is your understanding of how your
3 honesty affects this agreement?
4 A Well, if I tell any kind of lie, it voids it
5 and it's no good. It's a truth agreement, and that's
6 about it, a cap. As long as I tell the truth, I can only
7 get a certain amount of years .
a MR. URICK: I would offer, as State's Exhibit
9 35, the witness' plea agreement.
10 THE COURT: Any objection?
11 MS. GUTIERREZ: No.
12 THE COURT: Let it he admitted.
13 (State's Exhibit No. 35,
14 previously marked f oi-
ls identification, was
16 received in evidence , )
17 MR. URICK: May I have the court's indulgence
18 for just a moment?
19 THE COURT: Yes, you may.
20 (Brief pause.)
21 BY MR. URICK:
22 Q If you would, please, look at that exhibit
23 again. Do you see line seventeen?
24 A Yes.
25 Q Do you recognize that number?
1S3
1 presume. That's not even what I'm interested, in. He
2 acknowledges that at the hearing that he asked
3 Judge McCurdy, and he may have a -- took place because of
4 his request, but on the table was the ability of Jay Wilds
5 to withdraw the plea.
6 When I spoke to Judge McCurdy in the presence of
7 Ms. Murphy, he doesn't recall such a hearing and doesn't
8 believe it would have occurred, believes he would have
9 remembered if it had occurred. And if there had been
10 anything, it would have occurred before the plea, you know,
11 on the issue of counsel. But there's no other
12 recollection. Judge McCurdy' s office staff has already
13 reviewed all his records, and I tell you, as an officer of
14 the Court, that there is no record entry in the calendar,
15 in any papers of Judge McCurdy' s -- papers. And of course,
16 as the Court's already aware, the court file reflects no
17 such proceeding, either on or off the record -- the court
18 file was handled by Judge McCurdy at any juncture following
19 the September 7.
20 Mr. Bennett-Royo would have said, but -- couldn't
21 go any further and cut off the questioning of her, that --
22 she may -- with Mr. Urick on the 7th, in the presence of
23 her client, and that she made sure client understood that
24 one of the benefits that's not reflected in the typewritten
25 plea agreement and would not be reflected on the record was
63
1 an agreement that would allow Mr. Wilds to withdraw his.
2 plea at a time later than the 7th, and she would have
3 testified that's what she told me in the presence of my law
4 clerk, that her concern and insistence on that being a
5 benefit of the bargain was because she felt that there --
6 that this guy, meaning Mr. Syed, might feel that, in fact,
7 she was just brought in to represent Mr. -- interests and
8 that since it was so unusual that his lawyer be provided by
9 the prosecutor that he had the absolute right, after
10 reflection, to withdraw the plea.
11 As to that issue, and that's the first issue, I
12 believe we're absolutely entitled to get in all the
13 benefits of the bargain that were extended to Mr. Wilds,
14 whether or not Mr. Wilds testifies truthfully as to vshaz
15 they are.
16 Now, the fact finder has a right to consider all
17 of the benefits of the bargain in assessing whether or not
18 the bargains have anything to do with influencing his
19 testimony or what that bargain is or what extent he may be
20 beholding to him when he made the bargain, both what's
21 written and what's not written, and it's up to the jury to
22 decide whether Mr. Wilds is telling the truth and to decide
23 as to all things, including what Mr. Wilds' perception is
24 of the bargain or - - his lawyer says that was part of the
25 bargain, it was made in front of him, and that goes
64
A pp. 3
1 MS. GUTIERREZ: No, Judge. I have my first
2 witness --
3 THE COURT : The State's reiterating its
4 position --
5 MS. GUTIERREZ : But I would have to make
6 arrangements to get Mr. Wilds in again.
7 MR. URICK: We're reiterating our opposition co
8 any such proceeding taking place in front of the jury.
9 THE COURT: As I indicated previously, I believe
10 that calling Ms. Bennett-Royo would not be appropriate and
11 it would just take us off on a needless presentation of
12 evidence. And I would find that the credibility of
13 Mr. Wilds has been exhausted. The ability to cross-examine
14 him and bring out those things that might have affected his
15 testimony and his credibility was done, and I believe thai
16 clearly it was what was in the mind of the Defendant at the
17 time that he the Defendant meaning Wilds -- entered int-
18 this agreement, and he testified as to that. He's not a
19 lawyer, he doesn't know what the Rules of Maryland provide
20 that even with a guilty plea and even if he signed
21 something, that a judge could allow him to withdraw his
22 plea under circumstances where the Court determined it
23 would be appropriate. Whether he knew that or not, whether
24 or not that's something that affected his testimony,
25 clearly did not come out as something that was within his
74
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Page 21
1 lawyer. Judge, it's a fraud. Perpetrating that fraud
2 and trying to clean it up doesn't take it back to the
3 beginning.
4 THE COURT: I don't want you to have to
5 compete with what's going on outside.
6 MS. GUTIERREZ: Judge, it may well be since
7 this is the first week of that proceeding and if that
8 proceeding before Judge McCurdy then it would be
9 readily available on video and I'll ask the Judge to go
10 back because I will bet that there may not be anything
1 1 on that record that Judge McCurdy was made aware enough
12 co trigger that he even understood that that witness
13 may not have retained his own lawyer. That the
14 arrangements for the lawyer came through a prosecutor
15 for his witness. You can look at that, but whatever it
16 shows it doesn't alter the fundamental issue that the
1 7 lawyer was gotten by this lawyer. Whether he satisfied
18 or not whatever he says, that goes to his credibility,
)9 that's pan of the argument.
20 Of course he's satisfied now. he got all the
21 benefit, he's out to please the man who beholden him
22 with an actual benefit. Lawyers aren't potted plants,
23 they cost money. If one is indigent and entitled to a
24 lawyer there's a way to do it. Prosecutors never get
25 pick lawyers. It is critical to this case.
Page 23|
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1 have that availability.
2 - Secondly, you have the; availability of calling Ms
3 Benaroya who I feel would offer you an additional
4 opportunity to present evidence to attack the
5 credibility of Mr. Wilds. For that reason I do not
6 find a compelling reason to call or allow you to call
7 Mr. Urick as a witness in this case and with that, with
8 regard to that motion your motion is denied. 1 do
9 appreciate your argument however, and I will note your
10 objection and make sure that your motion appears in the
1 1 record and I'm sure that at the time you may want to
12 reiterate or reargue this issue at another time, but 1
13 will also preserve the materials you've provided to me
14 in the record so the record reflects that, but your
15 motion is denied.
16 MS. GUTIERREZ: Thank you. Judge. I do have
17 a couple other motions in light of that. First of all
18 --
19 THE COURT: Well, before you go into any
20 other motions let me deal with the motions in front of
21 me and then you can add to that because 1 would like -
22 I think you need to know that there are a number of
23 other things that you've asked for already and I would
24 like to deal with those first before I take up
25 something new. Second, I've been provided this morning
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1 the COURT: Thank you, Ms. Gutierrez. 1
2 would agree with you that normally prosecutors don't
3 pick lawyers for Defense Counsel and 1 would also agree
4 with you that the Court rarely picks attorneys for
5 Defense Counsel, for Defendants. In fact, the
6 Defendants absolutely have a right to pick counsel
7 They have a right to pick substitute counsel, they have
8 the right to excuse their counsel and say they'll
9 represent themselves, but that right remains with them.
10
L 1 I find that there must be a compelling reason to
12 call Mr. Urick as a witness in this case in order thai
13 you may be afforded the opportunity to challenge the
14 credibility of Mr. Wilds with regard to any deal or
15 benefit derived from the Stale through the presentation
16 I'll call it, of an attorney for Mr. Wilds. I also
17 find that first you made an argument, a rather
18 compelling presentation of facts. When I say
19 compelling 1 mean that you have available to you
20 through your very argument to this Court those items in
21 evidence to challenge the credibility of Mr. Wild's
22 testimony with regard to anything Mr. Urick may have
23 done to assist. The witness himself, Mr. Wilds
24 provided you with that evidence and you readily used it
25 in your argument to this Court. So I find that you
Pane 24
1 with notes from both detectives. Detective Ruiz.
2 MR URICK: Ritz.
3 THE COURT: Ritz.
4 MS GUTIERREZ: These are the notes of the
5 two
6 hours --
7 THE COURT; Yes. oh yes.
8 MS GUTIERREZ: We expected an affidavit.
9 THE COURT: Yes.
10 MS GUTIERREZ: That did not exist.
1 1 THE COURT: No affidavit, Ms. Gutierrez
12 because 1 have notes and I have a second set of notes
13 from, 1 assume they're Detective McGilvary.
14 MR. URICK: That's correct, Your Honor.
15 THE COURT: I don't know who is whose, all I
16 know is that there is two sets of notes that appear to
17 be in different handwriting. Perhaps Mr. --
18 MS. GUTIERREZ: Are they identified as to
19 which?
20 THE COURT; No, they 1 ic not. I'm asking
21 perhaps Counsel -
22 MR URICK: I believe the yellow is Detcctne
23 McGilvary's.
24 THE COURT: McGilvary's is in the yellow
25 MS GUTIERREZ- And are thev identified a-, to
Condenselt!
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1 didn't dare object to that question, they didn't object
2 and it was only in response to that that he answered.
3 It was pure for fortuity. And in light of having
4 chosen to hide it and not reveal it to the defense,
5 Judge that's the things that can be corrected and many
6 of those things can even be corrected all the way up to
7 the end of the trial.
S There may be other relief that we ask Judge, but
9 there is no correction for this unless this Court is
10 prepared to allow us to go back and reopen to the jury
1 1 armed with all the knowledge we should have had about
12 the only witness that can make or break a case against
13 Adnan Syed. That's the only remedy that can possibly
14 make us whole. So, we would move to strike all of his
.15 testimony.
16 THE COURT: Very well. I'll hear from the
17 State.
18 MR. URICK: Without going into the same
19 detail I will elaborate my previous response. Ms.
20 Gutierrez is arguing benefit in a situation that's not
2! appropriate. Assistance of counsel is a fundamental
22 right, it is not a benefit. The case law established
23 that quite clearly.
24 Secondly, the assistance of counsel is effectuated
25 through judicial review. I was not present for that
Page 35
1 establishes even more, so any role that Mr. Urick had
2 in obtaining that attorney, that particular attorney
3 and again, 1 don't know what Ms. Benaroya is going to
4 say but if you find there's even more evidence that
5 will add to that -- the issue to the credibility of Mr.
6 Wilds being related in that way you may argue that
7 But I do find that is a minor issue to the total j
8 weight of his credibility, that it is something to be !
9 raised, but it goes along with the aspects of the plea
10 agreement which you went through in detail. Which also
1 1 may be argued obviously to bring forth to the jury's
12 attention the manner in which they should weigh heavily
13 or not weigh heavily the testimony o Mr Wilds, so lor
14 that reason your motion to strike his testimony is
15 denied, but you will be given latitude to argue that in
16 closing and also to the extent it may come up through
17 any other witnesses. j
18 MS GUTIERREZ Well Judge, in light of v. hat
19 the Court said, if the Court recalls the cross
20 examination on the plea agreement actually took place
2! on Friday and I would ask and I appreciate the Court's
22 indication that it's going to give me wide latitude.
23 But because this was a surprise, a new knowledge in
24 order to effectively take advantage of that 1 think ue
25 would have to go back to the plea agreement that 1
Page 34
1 but it was my belief that that was on the record. I
2 don't know, I wasn't there, 1 can't state that for
3 certain. Judge McCurdy might be able to clarify that,
4 L can't but it was my impression that that was on the
5 record. Hence, there is no benefit here, this is a
6 fundamental right and it was effectuated through
7 judicial review that found as I previously mentioned we
8 would oppose Ms. Gutierrez's motion.
9 THE COURT- Very well. Motion to strike the
10 testimony of Mr. Wilds is denied. However, I'm going
11 to allow Counsel in closing argument to argue the
12 credibility of Mr. Wilds being effected by anything
13 that Mr. Urick may have done in assisting him in
14 getting counsel and that is anything that came out
15 through Mr. Wilds' s testimony of what he believed, not
16 what may in fact have occurred, but what he believed
17 happened. Because it's his belief that controls his
18 credibility, what he testified to, why he testifies in
19 the way he testifies, why he signed the agreement and
20 why he testified in this case.
21 So. to the extent that lie believes that there was
22 some benefit and that anything Ms. Gutierrez has
23 indicated so far effects his credibility then you may
24 argue that in closing. Also to the extent you may
25 choose to call another witness like Ms. Bcnaroya which
Page 36
1 pretty much had fully covered on Friday. That's what 1
2 covered, but of course, I had none of the information
3 that I have now in regard to the lawyer issue and how
4 that came about and so I would certainly be requesting
5 that that wide latitude include my ability to go back
6 to areas that clear have already covered but without
7 this knowledge.
8 THE COURT' Ms. Gutierrez, I'm going to deny
9 that request. My notes reflect that yesterday you
10 spent just over an hour on the plea agreement in
1 1 addition to -- in addition to the questions on Friday.
12 MS. GUTIERREZ But that was before I got the
13 information.
14 THE COURT. Well, actually I think --
15 MS. GUTIERREZ The magic information came at
16 ten after four.
17 THE COURT: The magic information actually
18 came from the witness earlier on.
19 MS. GUTIERREZ: No. Judge.
20 Tllb COURT. He, himself said --
21 MS GUTIERREZ: Its ten after four --
22 THE COURT: All right.
23 MS GUTIERREZ: in which he sa\s he got Mr
24 bricks' assistance in obtaining counsel
25 THE COURT: Ms. Guticncz, 1 hear what vou'tc
Condcnselt!
TM
■
Page 153
j Q You don't recall that?
2 A No, ma'am.
3 Q Will reviewing your transcript help refresh your
4 recollection?
5 A Yes, ma'am.
6 Q Well, perhaps we can arrange that.
7 MR. URICK.: Objection.
8 BY M.S. GUTIERREZ:
9 Q So sir, you don't --
10 THE COURT: Sustained. Counsel, can we move on?
1 1 The witness has answered the question. Your next question.
12 BY MS. GUTIERREZ:
13 Q Now on the 1 3th of April Mr. Wilds, you were
14 again brought downtown, right?
15 MR. WILDS:
16 A Yes. ma'am.
17 Q And you were asked about these things by
!8 Detectives McGilvary and Witts, were you not?
19 A Yes, ma'am.
20 Q And they were still concerned about varying
21 inconsistencies, were they not?
22 A Some, yes.
23 Q And they asked you a lot of questions, did they
24 not?
25 A Yes, ma'am.
Page 155!
1 Q It was not long, but after that, right?
2 A Yes, ma'am.
3 " Q Not before then, right'?
4 A No, ma'am.
5 Q Now at the lime you signed the plea agreement you
6 already identified what's in evidence as Stated Exhibit 35.
7 sir?
8 A Yes, ma 'am.
9 Q If you look ai 1 A by signing this plea agreement you
10 represented that you had fully and truthfully responded to all
11 questions put to the Defendant by law enforcement authorttie:
12 during all prior interviews, did you nol?
13 A Yes, ma'am.
14 Q And if you look down further in paragraph A in the
15 second to last line in that paragraph it mentions that you
16 shall continue to cooperate fully wilh the State by providing
17 full, complete and candid information, does U not* 1
18 A Yes, ma'am.
19 Q And you signed on that, did you not?
20 A Yes, ma'am.
21 Q And Mr. LYick signed, did they not'*
22 A Yes, ma'am
23 Q And your lawyer signed, did they not '
24 A Yes, ma'am
25 Q Incidentally, at whal point did your lawyer come
I
I
Page 154
1 Q And you were still free, were you nol?
2 A Yes, ma'am.
3 Q And that occasion there was no tape recording,
4 was there?
5 A 1 don't believe so.
6 Q Well once again, they took notes, did they not?
7 MR. URICK: Objection.
8 the COURT: Overruled. Did they take notes?
9 MR. WILDS-. No, ma'am.
10 BY MS. GUTIERREZ:
11 Q And once again, you didn't ask for help in getting a
1 2 lawyer, did you?
13 MR. WILDS:
14 A No, ma'am.
15 Q And you didn't bring a lawyer wilh you?
16 A No, ma'am.
17 Q And the next time you spoke to anyone in law
18 enforcement about these things was in September when you
19 signed the plea agreement, is that correct?
20 A Yes, ma'am.
21 Q And you didn't have concessions with Mr. Urick and
22 Ms Murphy 'til long after that, right?
23 A No, it was not long.
24 Q Pardon.
25 A It was not long.
Page 156
1 about after the 13th of April?
2 MR.URSCK Objection.
3 THE COURT Sustained.
4 BY MS. GUTIERREZ
5 Q Did anyone help provide you a lawyer''
6 MR. URICK: Objection.
7 THE COURT. Overruled.
8 MR. WILDS Yes, ma'am.
9 BY MS. GLTIERREZ
10 Q Who?
1 1 MR. WILDS
12 A Mr. Urick
13 Q Mr. Urick the prosecutor m this case helped provide
14 you a lawyer?
15 A Yes, ma'am.
16 Q And that was before or after you got notice that you
17 would be charged by him?
18 MR. URICK: Objection.
19 THE COURT Overruled
20 MR. WILDS- Ucforc, ma'am.
21 DY MS. GUT1ERRIIZ
22 Q Did you meet your lawyer bdo:e the Ja\ liui: \ou
23 signed the agreement that you called t;:c truth agreement''
24 MR. WILDS:
25 A No, ma'am
Condenselt!
, V**? Page 157
Page 159
1
Q And did Mr. Urick confront you or speak to you
1
the court: Sustained.
2 before you and he signed it about all the lies that you had
2
BY MS. GUTIERREZ:
3 already told the police?
3
Q Did your lawyer, the one provided by Mr. Urick. tlie
4
A Me and Mr. Urick had a conversation.
4
prosecutor advise you to sign it?
5
Q Pardon.
5
MR. WILDS
6
A Me and Mr. Urick had a conversation.
6
A No.
7
Q Did he - did that conversation include a discussion
7
Q No. Now, you didn't have to pay for your lawyer.
8 about the lies that you've already admitted that you had told
8
did you?
9 the police?
' 9
mr. urick - . Objection.
10
A Yes, ma'am.
10
THE court: Sustained.
11
Q Yes. And were you forgiven for those lies?
11
BY MS GUTIERREZ:
12
A Forgiven?
12
Q When was it that you understood that Mr. Urick would
13
Q Forgiven?
13
be getting your lawyer?
14
A You'll have to ask Mr. Urick that, I don't know.
14
mr. URICK: Objection.
15
Q Well sir, this is your plea agreement, is it not?
15
the court: I'm sorry. When was it that you
16
MR. URICK: Objection.
16
understood ~
17
j THE COURT: Sustained.
17
Ms Gutierrez That Mr. Urick would be getting your
18
BY M.S. GUTIERREZ.
18
lawyer?
19
Q This controls what will happen to you, does it not?
19
THE court Sustained. Ladies and gentlemen, as we
20
.MR. URICK: Objection
20
proceed with the questioning by a show of hands does anyone
21
the COURT: Sustained
21
need water in the jury box? All right Can we gel some
22
BY MS GUTIERREZ:
22
assistance? Mr. Deputy Church, would you assist? Thank you
23
Q It has no impact on any punishment on Mr Urick,
23
Is there neat coming rrom the back, behind you; Ladies and
24
does it?
24
gentlemen, I don't know what has triggered the heat but we'll
25
MR. URICK. Objection ,
25
try to find out why. Maybe it's starting to drop outside
Page 158
Page 160
I
THE COURT: Sustained.
1
Just indicate and as again I'll ask maintenance to see if they
->
BY MS GUTIERREZ
2
can't assist in — if it's not one thing it's another. Deputy
3
Q You read it very carefully before signing it, did
3
Church, if you could - do you know where Ms Connelly is?
4
you not?
4
MS Gutierrez- Judge, can we take a short break?
5
MR. WILDS:
5
THE COURT: We Could.
6
A Yes, ma'am.
6
Ms Gutierrez. It's about four.
7
Q And you discussed it fuliy with the lawyer, the
7
THE COURT. We're going to do. ladies and gentlemen.
8 prosecutor got you, did you not?
8
we're going to have Deputy Church just walk you back to the
9
A Yes, ma'am.
9
jury room across tlie hall, let you stretch your legs and get
10
Q And sir, you understood that you were signing and
10
some air and I'm going to ask that maintenance come in the
1 1
affirming that you hadn't told them any lies, right?
11
interim to see if they can adjust tlie radiators so -- they are
12
A Pardon me? I had signed it affirming --
12
directly behind you which is why tlie heat is emanating and you
13
Q You were signing saying that you understood that
13
all are getting tlie heat before we do. But I can tell lhat
14
you've been truthful for them, did you not?
14
you appear to be uncomfortable particularly in the back row so
15
MR. URICK' Objection.
15
what we'll do it to try to get tliem in here. I'll make a call
16
THE COURT: Sustained.
16
and we're going to take a brief recess.
17
BY MS. GUTIERREZ.
17
During the recess Mr. Wilds. I must ad\ ise you that you
18
Q Sir, you read this before you signed it, xlid you
18
should not discuss your testimony with anyone, the State or
19
not?
19
the Defense Your welcome to stay put in the courtroom if
20
MR. URICK: Objection.
20
you'd like or you are also welcome to stretch your legs but
21
BY MS. GUTIERREZ.
21
stay put until the jury goes out. Ladies and gentlemen. I'm
22
Q And you understood that the truth part of the
22
going to ask that you leave your note pads face down You may
23 agreement wasn't just truth in the future --
23
take your water cups with you li you warn. Do not discus tlie
24
MR. URICK: Objection.
24
testimony that you've licard today or anything else. It's ru^t
25
Q Did you not?
25
o brief recess, we're just going to try to get the heat
Condenselt!
rage 00
Page 70
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23 coiiversation with vour lavwer If vou choose to
A Yp<; ma'am
24 waive that privilege, you have an absolute right to
24
Q And what it was that you would be expected
25 do that but it is your right not to discuss anything
25
to testify about?
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A Yes, ma'am.
4 THF COURT' !<; flint a vrs**
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4
Q And that discussion took place inside the
S THF WITNF^^* Ye*< ma'am
5 State's Attorney's Office, did it not?
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6
A Yes, ma'am.
7 b/\<i CriitierTP7
7
Q And that discussion took how long?
8 MS GUTIERREZ' Jurlire we would unto :in
8
A About an hour.
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7 UUJULUUll IU Llllj ^UUJ 1 0 IVlillllA ullLl uoIV 1U1
9
Q And at the end of that hour you signed an
10 THE COURT- That's auite all rieht
10 agreement that you called the truth agreement, did
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A Yes.
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13
Q And Mr. Urick signed it?
14 MS GUTIRRREZ- Thank von Vour Honor
14
A Yes, ma'am.
15 O Now Mr Wilds there came a lime after
15
Q And Ms. Benaroya signed it?
i6 about an hour and half when vou left that room
16
A Excuse me, yes, ma'am.
17 together with this woman that had been introduced to
4 ' \ V 4^ W 14 lx#4 * * 1 »ll lU ' V 1114411 441 44 I 1 1UU V w 11 1 1 1 L 4 vUUvvU lv
17
Q Was that agreement typed up while you were
18 you by Mr. Urick --
18 talking to them in that same room?
19 MR. URICK: Objection.
19
A No, ma'am.
20 O — correct 1 '
20
Q This agreement that you signed was
21 THE COURT Overruled
4-1 L L l4w ' W \-> 1 V 1 . *v_/ VL1 1 U IVUi
21 presented to you for the first time in that room, was
22 A Yes, ma'am.
22 it not?
23 Q And you went somewhere, did you not?
23
A Which room?
24 A Yes, ma'am.
24
Q The State's Attorney's office?
25 Q And the place where you went was across the
25
A Which room?
I'i'l App. 14
1 and decided that he wanted. And to have Ms. Julian come in
2 serves no purpose in the interest of- justice or a
3 furtherance of this case. And so, for that reason,
4 Ms. Julian will not be permitted to testify unless she has
5 some personal knowledge about this case or some relevant
6 testimony other than what you've already proffered to this
7 Court .
8 And I would also note for the record that you are
9 well within developing your theory, but whatever theory you
10 develop, I still have the discretion to determine whether
11 the information is relevant to this proceeding.
12 MS. GUTIERREZ: I understand, Judge.
13 THE COURT: And you can disagree and you can note
14 the record, as you have.
15 MS. GUTIERREZ: You know that I'll do it.
16 THE COURT: And so, I respect your argument --
17 MS. GUTIERREZ: I would ask for some guidance --
18 THE COURT: -- and your right to make your
19 argument, as I'm sure you respect my right --
20 MS. GUTIERREZ: And as the Court knows, I'm --
21 THE COURT: -- to disagree.
22 MS. GUTIERREZ: -- working on a jury
23 instruction --
24 THE COURT: Very well.
25 MS. GUTIERREZ : --to that and I will
239
Condensclt!
Page 72
Page 74
1
Q Wherever you, Mr. Urick, and Ms. Benaroya
l A No, ma'am.
2 were talking. Did you talk in more than one?
2 Q And did your lawyer?
3
A No, ma! am.
3 -■ MR. URICK: Objection.
4
Q Was there anybody else ever involved in the
4 THE COURT: Sustained as to the question.
5
discussion?
5 If you could put a time did your lawyer make —
6
A No, ma'am.
6 Q In the hour and a half that you were in the
7
MR. URICK: Objection.
7 room together with Mr. Urick and this woman that iiad
8
Q Well, in that room -
8 been introduced to you as a very good lawyer, or
9
THE COURT: Overruled.
9 defense lawyer that did pro bono stuff -
10
Q Was that the first time that you were
10 MR. URICK: Objection,
1 1 presented with this agreement?
11 Q -- during that time period --
12
A No, ma'am.
12 MR. URICK: Objection.
13
Q And you had been presented that previously,
13 THE COURT: Overruled. Did you observe
14
had you not?
14 your attorney in the presence of the others make
15
A Yes, ma'am.
15 changes to that plea agreement? Yes or no.
16
Q After you were introduced to Ms. Benaroya,
16 THE WITNESS: Yes.
17 correct?
17 THE COURT: Yes.
18
A Yes, ma'am.
18 Q And were you discussing it with your lawyer
19
Q And at the time you were presented it, it
19 at that time?
20 was already typed up, was it not?
20 MR. URICK: Objection.
21
MR. URICK: Objection.
21 THE COURT: Sustained.
22
THE COURT: Sustained.
22 Q Were you discussing it with Mr. Unci;''
23
Q There was no place in the agreement for
23 A No, ma'am.
24 fill in the blanks, was there?
24 Q The changes that you made you said the
25
MR. URICK: Objection.
25 alterations that you made concerned what?
Page 73
p_is;e 75
1
THE COURT: Sustained.
I A Minor things, going to court.
2
Q When you were in the room with Mr. Urick
2 Q Pardon?
3
and this woman Ms. Benaroya, did any of you make any
3 A Minor things like how and when I wa>
4 alterations to the agreement —
4 supposed to go to court.
5
MR. URICK: Objection.
5 Q When you were supposed to go to court '
6
Q -- that you were presented with?
6 A How, how.
7
THE COURT: Overruled. Any alterations to
7 Q How, meaning how were you supposed to get
8
the agreement that you were presented with?
8 there?
9
THE WITNESS: Yes.
9 A No, like the terms.
10
Q Yes. And did you cross out things?
10 Q The terms of going to court?
11
A Yes.
11 A Yes.
12
Q Put your initials on places?
12 Q Well, you understood, sir, that the
13
A Yes.
13 agreement requires you to testify at any time they
14
Q And did you insist on other terms?
14 tell you to do so?
15
A No, ma'am.
15 A Yes, ma'am.
16
Q And were you asked to read all of the terms
16 Q And is there — maybe you could help tell
17
in your presence?
17 us what part of that you wanted to change?
18
A Yes, ma'am.
18 MR. URICK: Objection.
19
Q And to make sure you understood them?
19 THE COURT: Sustained.
20
A Yes, ma'am.
20 Q What part of that did you change?
2t
Q And were you given an opportunity to ask
21 MR. URICK: Objection.
22 questions of your own?
22 A I believe it was --
23
MR. URICK: Objection.
23 THE COURT: Just one moment. What pan -
24
THE COURT: Sustained as to the question.
24 I'm going to sustain the question.
25
Q Sir, did you make alterations?
25 Q Mr. Wilds, while you were in that room u ith
Page * . ,
to App. 16
Condenselt!
Page 53
1 attorneys because for all I know she has other
2 appropriate business with them. But I think that will
3 suffice in addressing the concerns of Ms. Gutierrez.
4 Any other matters before we bring the jury out?
5 MS. GUTIERREZ: Well Judge, --
6 THE COURT: Mr. Urick.
7 MS. GUTIERREZ: No. not on my list. 1 have
8 others. Although I would ask before continuing the
9 cross examination of Mr. Wilds an ability to review
10 those notes.
11 THE COURT: Absolutely. Why don't we do
12 that. In fact, if we can have Mr. Wilds come in
13 because —
14 MR. URICK: I have a couple of motions if
15 Defense Counsel is finished with hers.
16 THE COURT: Very well. Before Mr. Wilds
17 comes in.
18 MS. GUTIERREZ: Finished them until 1 think
19 there's some new ones.
20 THE COURT. I will hear from Mr. Urick.
21 MR. URICK: Your Honor, the first, well
22 they're both motions in limine. It struck me after the
23 fact that Ms. Gutierrez was asking questions of Mr.
24 Wilds about discussions he had with his attorney,
25 that's privileged information as the Court notes one
Page 54
1 time, several times this morning.
2 I would ask that the Court direct Ms. Gutierrez
3 not to ask any questions of the witness as to any
4 discussions he had with his attorney because that is
5 privileged information and it would be not -- he would
6 have an absolute privilege to keep that from being
7 revealed. The second motion in limine is that I would
8 move that she not be allowed to inquire any further
9 into his assistance of counsel and in support of that
10 motion in limine and I provided the Court today with
1 1 Jeffrey Ebb versus State of Maryland. This is a
12 discretionary motion and it goes to admissibility of
13 evidence. Ms. Gutierrez is trying to inject an issue
14 before the jury that is not a jury question.
15 THE COURT. Which issue is that?
16 MR. URICK: His assistance of counsel. She's
17 trying to claim it as a benefit, it's not, it's a
18 fundamental right. Because it's a fundamental right --
19 THE COURT. Do you understand her argument?
20 MR. URICK: Yes I do. Your Honor.
21 THE COURT: And her argument as you sec it
22 that his right to counsel?
23 MR. URICK: She is trying to make that a
24 quantifiable asset like it's a good, it's not. It's a
25 fundamental rifht. Rpr.;nisf it's fimrhmenfnl ri"ht it
Page 55
1 is not a benefit.
2 THE COURT: He has a right to counsel,
3 correct?
4 MR. URICK: Yes.
5 THE COURT: If someone paid for him to have
6 an attorney, would that be a benefit?
7 MR. URICK: I believe that probably would be.
8 THE COURT. If someone arranged for him to
9 have an attorney that he might not ordinarily be able
10 to have, higher obtained. Would that be a benefit?
1 1 MR. URICK: The State has a duty to provide
12 him an attorney.
13 THE COURT I didn't ask you that. ! asked
14 you whether or not it would be a benefit?
15 MR. URICK: I believe it would be a
16 fundamental right, it would not be a benefit.
17 THE COURT: You work for an employer and the
18 employer said, oh, by the way if you get in trouble
19 I'll pay for your lawyer, is that a bcnclit? It's a
20 benefit. You work for a drug dealer and he says, oh,
21 by the way if you get in any trouble I have a lawyer.
22 is that a benefit? It's a benefit, it's a benefit.
23 Now we don't know whether or not he accepted or
24 rejected any lawyer that you offered him or anyone on
25 behalf of the State offered him. He, like anyone has a
Page 56
1 right to object.
2 If you have an insurance company, you're in a car
3 accident, you can take the lawyer that goes with the
4 insurance company or you can say, that's okay, I'll get
5 my own. If you work for a drug dealer and he says I'll
6 give you a lawyer if you get in trouble, you can always
7 say, that's okay I don't want him and if the State
8 offers you an attorney you can always say. that's okay,
9 I'll get someone else because the right is the
10 Defendant's right. As you said, but the benefit is
1 1 still one which counsel could argue existed. Whether a
12 jury, a finder of fact believes in fact he benefited.
[3 whether the finder of fact believes that if effect-, iu>
14 credibility is an argument that Ms. Gutierrez will tunc
15 and I do find that arguably it could be perceived as a
16 benefit, could be.
17 I don't find that the State did anything in error
18 in not disclosing it because 1 think the State honestly
19 and with good faith did not perceive it as a benefit.
20 However, it is now been disclosed to the Defence and
21 the way in which it happened, the circumstances Jiidcr
22 which it happened is still kind of foggy and unclear.
23 but as it is foggy and unclear the Defense is alv. a\s
24 able to take facts that are foggy and unclear and argue
•>< in n iur- nrH -n tI : H - f"- r- ti - r - r- n
Condenselt!
Page 76
1 Ms. Benaroya and Mr. Urick, did anybody else come in
2 and out?
3 A Yes, ma'am.
4 Q And who was that?
5 A Ms. Murphy.
6 Q Ms. Muiphy. And you understood who she
7 was, right?
8 A She introduced herself.
9 Q Well, you just told us you had heard her
10 name before?
11 A Yes, ma'am.
12 Q And you knew her to be a prosecutor before,
13 right?
14 A Yes, ma'am.
15 Q Right?
16 A I had never seen her.
17 Q So although you had not met her you knew
!S who she was?
19 A I knew of her.
20 Q You knew of her. And she came in and out
21 of that room how many times?
22 A I do not recall.
23 Q That session ended at some point?
24 A Yes, ma'am.
25 Q And at the conclusion of that session had
Page 78
1 going to be charged in regard to any drug case, had
2 you?
3 MR. URICK: Objection.
4 THE COURT: Overruled.
5 A No, ma'am.
6 Q The only thing that you were lold is that
7 you were going to be charged as an accessory after
8 the fact to murder; is that correct?
9 A Yes, ma'am.
10 Q The murder that you had spoken to them
1 1 about that you say occurred on January 13th, right?
12 A Yes, ma'am.
3 Q That was the only thing they lold you.
14 right?
15 .A Yes, ma'am.
16 Q They weren't threatening you with drug
17 charges at any time, were they?
18 A No, ma'am.
19 Q On the 6th, the day before they didn't tell j
20 you, oh, by the way, you're going to be charged \\ nh !
21 an accessory after the fact to the murder about uhich
22 you discussed and also you're going to get charged in
23 all of these drug cases?
24 MR. URICK: Objection.
25 THE COURT: Sustained. Asked and angered
Page 77
1 this been totally negotiated?
2 A Yes, ma'am.
3 Q And was it retyped?
4 A Excuse me, no, ma'am.
5 Q No. So what you ended up with and what you
6 signed is the same document that was first presented
7 to you before you walked to the place where you spoke
8 with Ms. Benaroya and Mr. Urick?
9 MR. URICK: Objection.
10 THE COURT: Overruled. Do you know if it
1 1 Was the same document?
12 THE WITNESS: Not exactly.
13 Q Meaning you don't know exactly or it wasn't
14 exactly the same document?
15 A It's not exactly the same document.
16 Q And so the document that you signed did it
17 have any alterations that you made in it?
IS A Yes.
19 Q And what were those?
20 A Things involving whether it was a drug case
21 or not and stuff like that.
22 Q Well, this wasn't a drug case?
23 A That's why we made the alterations.
24 THE COURT: Sustained.
25 Q And, sir, you hadn't been told you were
Page
1 Q Now, sir, if you recall the other day 1
2 asked you about 1-A. It states that you the
3 defendant represent that he or she has fully and
4 truthfully responded to all questions put to you b>
5 law enforcement during all prior interviews. Jo >oj
6 recall that?
7 A Yes, ma'am.
8 Q And you've acknowledged, sir, that voa
9 hadn't responded truthfully to all of their
10 questions, right?
1 1 A There came a point when all of the
12 questions were answered truthfully.
13 Q Pardon?
14 A There came a point when all of the
15 questions were answered truthfully.
16 Q Well, no, sir. My question to you, you \e
17 already acknowledged that you've lied to them. have
18 you not?
19 MR. URICK: Objection.
20 THE COURT: Sustained.
21 Q And you were aware when you read this that
22 you had lied to them --
23 MR. URICK Objection.
24 THE COURT: Sustained.
25 Q - were you not -- and sir, were you a.skcJ
Page '.
Ann. 18
. kJhju^ {ulsl 1 : ^5 a.m. . "-/faj u^urv/zu/y, ocv^- U Urn
M ! M Ithtkiwuu/Lcal -fa aU ivkddr U CjML uto di
iC^uxn fyot 0UAtj (Jzefiz (Jktxt ^wt'Jd dS^i bulh{
Ywix} . If N(~[j&f\ lMXX/M k) Qstld -{jlos> dlkl- drtth j Sjj
Condenselt!
Page 4 1
1 the number I should use to contact the clerk's office
2 let me do that and if it turns out that it's not the
3 correct number and I've been misled then I'll deal with
4 that.
5 MR. URICK: I misspoke, that was the tracking
6 number. The case number is 299 —
7 THE COURT: One moment. 299 --
8 MR. URICK.-. 250.
9 THE COURT: 250.
10 MR. URICK.-. 001.
1 1 THE COURT: 001 and his name is not an alias,
12 it is Jay, J-A-Y.
13 MR. URICK. Yes.
14 THE COURT. W-I-L-D-S7
15 MR. URICK: Yes.
16 THE COURT: Very well. Ms. Connelly, if you
17 could kindly locate this guilty plea, get me a date,
18 find out from Ms. Sheldon if the tape is available.
19 Ms. Gutierrez, your next issue.
20 MS. GUTIERREZ: Yes Judge, at this time wc
21 would make a motion before full disclosure pursuant to
22 the Rules, pursuant to Maryland case law, pursuant to
23 Federal case law, pursuant to Brady, pursuant to due
24 process for full disclosure covering any and all
25 circumstances of exactly what help Mr. Urick provided
Page 42
1 in getting a lawyer, how the lawyer was selected or was
2 any other circumstances surrounding the selection of
3 that lawyer or the setting that up. What was
4 communicated from Mr. Urick to Mr. Wilds? Was there
5 any correspondence between that lawyer and Mr. Urick or
6 anyone acting as Mr. Urick's agent or from anyone
7 assisting or acting as Ms. Benaroya's agent?
8 That correspondence request would include
9 any phone records, any notes of conversations, whether
10 or not the information was reduced to a formal piece of
1 1 correspondence. The substance of any conversations and
12 now that we're on notice that subsequent to the plea
13 that there was a further proceeding, what if any --
14 what if anything occurred that led to that second
15 proceeding where this client was asked if he was happy
16 with the lawyer and satisfied with the lawyer that was
17 selected by Mr. Urick.
18 We'd also request information on ail the same
19 grounds, any information as from Mr, Urick as to
20 whether or not he's ever picked a lawyer lor the main
21 suspect in a murder ease outside the formal procedures
22 available in this jurisdiction to do so whether or not
23 in this case or any other case. He's made a referral
24 to the Public Defender's olTice if he ever approached
25 any judicial entity, what if any arrangements were made
Page 43
1 to pay the lawyer or not pay the lawyer through any
2 means. Direct money", other billing, any means
3 whatsoever. By any that would be including the State's
4 Attorney's Office hasn't received any billing from Ms. ■
5 Benaroya or correspondence or the submission of
6 documents indicating her time and when it was.
7 Any information regarding how he specifically
8 picked this lawyer, with his relationship with this
9 lawyer is and what is the substance of any of their
10 conversations prior to the 7th, on the 7th, regarding
1 1 the plea, regarding their specifically not just the ;
12 terms of the plea, but who made the decision regarding
13 1A in the pica. Regarding an attestation by Mr. Wilds
14 that he's always told the truth in all of his dealings
15 with the police or with the prosecutor up and until
16 that time and the substance of any conversation
17 regarding how that lawyer got to be there on the 7th
18 and what if any conversations took place that included
19 Mr. Urick in the presence of Ms. Benaroya on the 7th
20 that also included the presence of Mr. Wilds regarding
21 the introduction of the lawyer.
22 He's testified he had never met the lawyer before
23 that day and what was said about the lawyer or |
24 communicated about the lawyer in any manner. A
25 telephone message, a telephone call tlirough one of the
Page 44
1 detectives through any other person or communication lo
2 anyone else meant to get to Mr. Wilds about the lawyer
3 that Mr. Wilds was about to meet on the 7th as to why
4 she was chosen, what her experience was, what she now
5 knew in tlirough what terms and we would request
6 immediate disclosure of all of those circumstances
7 Clearly believing we would have been entitled to have
8 that disclosed, that it was a benefit and that we need
9 thai disclosure now to effectively cross examine
10 continually this witness about those terms because they
1 1 clearly will relate to his credibility is dependant on
12 that dependence of that lawyer, his dependance on Mr
13 Urick and would also impact, for instance on our
14 ability to effectively question Ms. Benarova
15 THE COURT: The State does not wish to be
16 heard, do you?
17 MR. URICK: No. Thank you.
18 TOE COURT: The motion is denied. The
19 information that you are seeking to contain would be
20 information that Mr. Wilds would have a prtvilcuc, llut
21 is how he chose a lawyer, the circumstances under which
22 he chose a lawyer. 1 do not believe the Slate has
23 information of that magnitude that would warrant me
24 asking the State to provide that information. In I act,
25 the fact that the witness has already testified thai
i
4
!
■ .,. • , ( ~r <-> u , f i <\ .
j ^JfiL^.. .7h.<L Qv.erb^ck'
I rkr ...C^ ^S^ <*L-lir. __^t>Wk.K-.._.iry.pccL .
(l
Padj for. /-wa- .for nar )Ul j^o_k._ ..
1 Q. Okay. And you recognize Ms. Lee's handwriting?
2 A. Yes.
3 Q. And on the reverse side, what -- describe what
4 is on that page?
5 A. It was a little note in between me and Adnan
6 had drawn in class, I guess. And my handwriting's in
7 pencil, his is in ink.
8 Q. Okay. You recognize both your handwriting and
9 Mr. Syed's handwriting?
10 A. Uh-huh.
11 MS. MURPHY: Your Honor, I would ask that
12 State's Exhibit 38 be moved at this time?
13 THE COURT: Any objection?
14 MS. GUTIERREZ: I would object.
15 THE COURT: All right. May I see the exhibit?
16 (Pause.)
17 THE COURT: For the record, I note your
18 objection.
19 I ask that you indicate a time frame, and, if
20 you're able to do that through this witness, the exhibit
21 will be admitted.
•22 MS. MURPHY: Thank you, Your Honor.
23 BY MS. MURPHY:
24 Q. Ms. Pittman, based on your review of this
25 exhibit, can you --do you have an idea of when this note
243
App 24
1 was written?
2 A. It was sometime early in November after the - -
3 Adventure World trip.
4 Q. Thank you.
5 MS. MURPHY: Your Honor, I'd ask at this time
6 the exhibit be admitted.
7 MS. GUTIERREZ : Same objection, and renew the
8 objection. Prejudicial.
9 THE COURT: There's two parts of handwriting on
10 it. There's one on the front, there's handwriting on the
11 back. The witness has testified as to when she wrote cn
12 the back, and are you saying you wrote on the back m
13 November?
14 THE WITNESS : Yes.
15 THE COURT: Okay. Do you know when the front
16 page of that was written? Of if there's anything in thac
17 that would indicate to you the time frame, based on your
18 knowledge of the relationship between the parties?
19 THE WITNESS: This was also written in the
20 beginning of November, sometime after the Adventure World
21 trip.
2 2 THE COURT: And how do you know that?
23 THE WITNESS: Content of the letter.
24 THE COURT: Very well. It'll be admitted over
25 objection.
244
1 (State's Exhibit No. 38,
2 having previously been
3 marked for identifica-
4 tiori/ was received in
5 evidence . )
6 MS. MURPHY: Thank you, Your Honor. Your
7 Honor, I would ask to publish this letter to the jurors
8 by way of Ms. Pittman reading first the front side and
9 then the back side?
10 THE COURT: Any objection? I know you have an
11 objection to the --
12 MS. GUTIERREZ: Only to the --
13 THE COURT: I understand that you have an
14 objection --
15 MS. GUTIERREZ: document.
16 THE COURT: --to the document. That's
17 preserved. Do you have any objection to the process of
18 her reading it as opposed to passing it along the jurors
19 and having them read it?
20 MS. GUTIERREZ: I do . I'd prefer the jurors
21 read it.
22 THE COURT: I'm gonna allow the witness to read
23 the exhibit.
24 One caveat: You may not read anything that is
25 not visible to your eye. You may ncc decide what
245
A pp. 26
1 . A. Yes, I did.
2 Q. Okay. Thank you.
3 MS. MURPHY: Your Honor, at this time I'd offer
4 State's Exhibit 2.
5 THE COURT: Any objections?
6 MS. GUTIERREZ: No, Your Honor.
7 THE COURT: All right. Let it be admitted.
8 (State's Exhibit No. 2,
9 having previously been
10 marked for identifica-
11 tion, was received in
12 evidence . )
13 BY MS. MURPHY:
14 Q. In fact, Mr. Lee, did there come a time when
15 your sister found out that you read her diary?
16 A. Yes.
17 Q . She wasn't very happy about that, was she?
18 A. No.
19 Q. Mr. Lee, I'd ask you to look at a particular
20 page that I've marked. Is this the page you've described
21 to the jury?
22 A. Yes, it is.
23 Q. All right. And what does it depict?
24 A. It has the phone number and the name Don
25 written over the paper.
32
/» nn T7
Condcnsclt!
Page 304
1 A Yes, I have.
2 Q Can you identify that item?
3 A It's Hae's diary.
4 Q Had you -- when had you seen it?
5 A I saw it the day that she bought it.
6 Q Had you seen her carry it before?
7 A TJh-hub, yes, 1 had.
8 Q If I may, I'll ask you to read for the
9 jurors the entry under May 14th, 1998?
10 MS. GUTIERREZ: Objection.
11 THE COURT: Overruled.
12 A I think I'll try that one week recess Deb
13 suggested. I hope forth and went out with Iesha,
14 Deb, and Sean in Sean's new car. It is so fly with
15 those tinted windows. We went to Baskins Robbins and
16 I got some cappuccino blast. I couldn't be with my
17 baby because he had to go to D.C. for his religious
18 stuff. That's what I need to figure out. Do I dare
(9 to pull him away from his religion? Ms. Savic was
20 all up in my face about it. She said stuff like well
21 Adnan used to be so religious and strict last year
12 but this year he is so loose, like I changed him.
23 Actually, I did and I don't want to pull him away
24 from who he is. I think I need time to organize
25 these things but I do not know that -- but I do know
Page 305
1 one thing. I love him and he loves me. Nothing will
2 change that. I'll try the recess week and sec what
3 happens. I'll probably kill myself if I lose him but
4 I'll go crazy with things complicating. 1 wish he'll
5 call back soon.
6 MS. MURPHY: Thank you.
7 Q Now, in the entry she mentions a one week
8 recess?
9 A Yes.
10 Q Do you know what she was talking about?
l L A Yes, 1 suggested to her --
12 Q Can you explain?
13 A Sure. I suggested to her that she and
14 Adnan take at least a week off from each other
15 because their relationship was becoming very
16 stressful. They were both coming to me with things
17 about their relationship that were really bothering
18 them and I suggested that they take some time off
19 from each other to figure things out personally.
20 Q I ask you now to read the entry under May
21 15th?
22 MS. GUTIERREZ: Again objection.
23 THE COURT: Overruled.
24 A I did it. Mc and Adnan arc officially on
25 recess week or time out. I don't know what's going
Page 306
1 to happen to us, Although I'm in love with him, 1 f
2 don't know about him. He actually suggests that what I
3 we have is like, not love. I heard the doubt in his
4 voice.* Although he couldn't pick up mine, I felt the I
5 same way. I like him. No, I love him. It's just I
6 all the things that stand in the middle, his religion
7 and Muslim customs all are in the way. It irks me to 1
8 know that 1 am against his religion. He called me a '
9 devil a few times. I knew he was only joking, but
10 it's somewhat true. I hate that. It's like making
11 him choose between me and his religion.
12 The second thing is the possessiveness.
13 Independence rather. I'm a very independent per.son.
14 I rarely rely on my parents. Although 1 love htm
15 it's not like I need him. I know I'll do just fine
16 without him. I need time for myself and with my
17 friends other than him. How dare he get mad at mc
18 for planning to hang out with lesha.
19 The third thing is the mind play. l'\c
20 matured out of my jealousy shit. I don't get jealous
21 over trying to get him jealous is a fool -- him
22 trying to get mc jealous is a fool because I'll
23 definitely loose him — me. I prefer a straight
24 relationship that don't get in people mixed up i^i
25 because he want to play mind games.
307
1 The fourth tiling is nothing. Because 1 do
2 love him. It's just all of the shitty things that
3 are messing with my mind. I'm just too confused. If
4 I don't take the time to set tilings straight, the
5 whole thing will blow up on my - blow up in :n> head
6 making me mad and do something I'll regret forever
7 That's why 1 need the time out. 1 just hope thai 1
8 don't lose him because of this. I love him. When I
9 hold him, I want it to be forever. I feel secure and
10 comfy with him. I think he expected more of a
U spontaneous combustion. That's not going to happen
12 all of the time. Our relationship bums lightly ai
13 first and then it eventually calms down. We started
14 strong and now we settle in a boring but secure and
15 loving relationship. I don't know what he wants.
16 All I want is him to hold on to, to cuddle up to.
17 kiss when 1 feel empty inside. Maybe I'm not
18 supposed to be loved but supposed to love and 1
19 thought I had found another keeper and maybe 1 ha\e
20 Hopefully, we'll go through this and come out much
21 stronger ~ with a much stronger foundation 1 io^c
22 him. I can live without him but 1 love him and v. ant
23 him with mc. Please Adnan be patient with me. lo\c
24 Q Thank you. Now, slic had discussed w ith wu
) 25 that recess week which six: talked about?
Page 30- , no
° Ann t.x
1 to kill her," which he clearly didn't.
2 But absent that, I would argue that what he
3 says is not admissible, it's hearsay, it's not
4 necessarily an admission. Anything that he said doesn't
5 make -- Mr. Urick said hasn't made it out to be an
6 admission. It's like, well, it sort of goes to motive,
7 that sort of developed over four to six months, doesn't
8 make it so. So, --
9 THE COURT: I'm gonna allow the State to
10 inquire as to the relationship that this witness was
11 aware of based on conversations that she had directly
12 with the defendant or directly with the victim in a
13 period of time preceding the murder.
14 However, I'm gonna allow the defense to have
15 free reign to inquire as to the limitations of that
16 knowledge, any restrictions that that knowledge may have
17 had, to including right up to the time of the murder.
18 And I would also remind you that it is to be
19 her personal knowledge and not based on information she
20 had received from other sources. So when her sentence
21 starts off with some other person other than the
22 defendant, the victim said such and such, or we all knew,
23 that will be not permitted.
24 MR. URICK: I'm sorry. Did you say she can't
25 say anything the victim told her?
136
-\pp 29
1 THE COURT: She can tell you -- she can say
2 what the victim said, she can say what the defendant said
3 as to their relationship. But beyond that --
4 MS. GUTIERREZ: At any time period prior to her
5 disappearance?
6 THE COURT: The period of time on or about, as
7 you've indicated, October, November, December in 1998.
8 However, ' I will not allow anything other than what
9 conversations she had with the witness, victim or the
10 defendant. Other than that, not a we knew, what we all
11 knew, what we all heard. That will not be permitted.
12 And again, I will allow the defense on cross to inquire
13 to the extent that that information will have
14 limitations.
15 MR. URICK-. Thank you.
16 MS. GUTIERREZ: We would note an objection.
17 THE COURT: All right.
18 (Counsel and the defendant returned to the
19 trial tables, and the following ensued.)
20 THE COURT: Now, you may reask your last
21 question or your next question in line with the Court's
22 ruling.
23 MR. URICK: Thank you.
24 BY MR. URICK:
25 Q. Drawing your attention to the Fall of 1998,
13 7
App. 30
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